GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Monday 19 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-TWO)
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 COONAN 1
THE CHAIRMAN: Good morning. Now we invite Mr Coonan to make his closing submission.
MR COONAN: Madam, thank you. This, of course, is the first time you have heard from me on behalf of Dr Southall in relation to the merits of the matters in your heads of charge, in a hearing which, somewhat unusually, has spanned over a year. It is a factor which you are going to have to take into account in some respects when you come to assess some of the issues in this case.
Perhaps I could tell you straightaway how I am going to deal with this. I am going to address you on a number of preliminary matters. Incorporated in that will be a summary of some of the background material. I think that may be helpful to you because a great deal of evidence was given to you, largely from Dr Southall himself, about the background to a lot of matters and, although I know you have assiduously been reading and so forth, you may find it helpful if I try to pull together – I hope, fairly and accurately – some of these matters which bear importantly upon his approach to many of these matters. I shall then deal with some specific matters in appendix 1; then move on to computers; and then deal, in the same order that Mr Tyson did, with Mrs D, Mrs H and then Mrs M.
I can tell you straightaway that I do not know how long this is going to take. I make no apology for how long it is going to take. You have heard Mr Tyson over a total, I think, of four and a half days in this case, so, again, I make no apology for how long this is going to take. I do say that, wherever we get to, I propose to leave Mrs M until tomorrow in any event. I hope that is helpful. It maps out the territory of the material that I propose to cover.
Madam, the first matter – and it is a matter which you will have heard in other cases, I have absolutely no doubt – is the question of burden and standard of proof. In other cases on which you will have sat, you may have thought to yourself, “This is a bit of a mantra. Defence counsel always say this.” They do. They have to. But in this case – and I shall develop this a little further – it is not – emphatically not – said by way of mantra: it is a crucial line between a fair trial and an unfair trial for reasons which will become very apparent, I hope, as we go through it.
The burden: the complainants have a burden of proving these allegations set out in the heads of charge. The standard: before you can find any of these live matters proved, you have to be sure. I prefer to use the modern version: “sure”. Mr Tyson used the old-fashioned version “beyond reasonable doubt”. The modern version is “sure” and that has to apply to each head of charge which is live.
In applying this formulation that in order to have found the matters proved you must be sure of them, you must be very careful not to fall into the trap of either directly or indirectly reversing the burden – which Mr Tyson did in one respect and I will come to that. It is a trap, an open trap, which can result in great unfairness and a wrong result.
One of the matters – Mr Tyson himself accepts this – which is of great importance in this case – and, again, I shall develop this when we look at the individual cases – is the effect of lapse of time. That is not a matter about which one can simply say, “Oh, well, there has been lapse of time.” There has been in a number of respects here a very significant, very substantial lapse of time. I am not in this respect referring to the lapse of time since our last hearing last November. That is not what I am referring to. I am referring to the lapse of time between the events that form the subject matter of the allegations and the date upon which the witnesses gave evidence and then, secondly, the date upon which you begin your deliberations.
Mr Tyson accepts in this regard that Dr Southall is indeed handicapped. That is one door I do not even need to push open, but it is a bit more open than Mr Tyson would probably grant. Why do I say that? Why is lapse of time here relevant? Lapse of time, you may think, erodes the ability of someone in Dr Southall’s position to frankly defend oneself. In that respect, is his ability to defend himself eroded? You may think it is obviously eroded because memory of events is erode – in particular, the content and nature of conversations is eroded. Secondly, you may think that the memory of one’s reasoning at the time is eroded – and in a number of respects that is terribly important here. The ability to locate documents may be eroded and the ability to bring forward witnesses with recollections worth anything is eroded if not irreparably damaged.
Of course, when you are considering the merits in these cases, you will consider the question of lapse of time no doubt on the complainants’ ability to give accurate evidence. And that is quite right. You should. But, in considering the operation of the burden and standard of proof – that process, in other words – the problem that a complainant might have and the problem that Dr Southall might have is it is not a balancing act. Any forensic approach which incorporates the concept of a balancing act is a misdirection. Lapse of time is not Dr Southall’s fault. I am not saying it is anyone’s fault, but the complainant in question chooses the time at which to make a complaint. That time is not of Dr Southall’s choosing. He has to respond when that time has elapsed. He has to respond in the best way he can and sometimes – as this case has demonstrated – with less than perfect results which can be wholly attributable to the lapse of time.
In considering this content, you have to couple it with the operation of the burden and standard of proof. If at the end of it, you think, “That might have happened in that way. It probably did, but on the other hand it might not,” there is only one verdict: not proved – because then, of course, you would not, would you, as a matter of concept, be sure? That is why the modern formulation is so much more applicable, particularly to a case like this.
One of the ingredients when you come to assess the merits of the case for and against here, concerns your assessment of Dr Southall himself. Mr Tyson, in his closing address to you, invited you to consider the demeanour and appearance of the witnesses called on behalf of the complainants, the complainants themselves and their witnesses. It may have been a Freudian slip but he did not include Dr Southall in that. Let us bring us back to why we are here. Dr Southall gave evidence to you over seven days last November. The transcript may not quite bring back the image you may have had of him, but please try to do that. You may remember how he struck you then. Here was a man labouring under the problem and disability of lapse of time, yes, but, equally, a man who gave evidence in a calm, measured, helpful way, with no attempt at all to shrug off or to load the responsibility on to anybody else. Where there are shortcomings, and there are – it is a question of how one pigeonholes them, but there are – he accepted them. You may have thought that the man who appeared before you had a few rough edges but, nonetheless, was a man of honesty and integrity.
On occasion, you may think – and, again, this will come alive when you re-read the transcript – not somebody who was prepared to accept an invitation occasionally offered by members of the Panel to assist on a particular matter. Where other lesser beings may have said, “Yes, please. I will accept that invitation,” he did not. He did not. My invitation to you – and it is a crucial one where there are collisions of fact – is to consider your impression of him, just as you would with the complainants.
With those very preliminary observations, let me come to some preliminary background observations in relation to the Special Cases Files. Much of this is non-contentious, but, as I said earlier, may be of some help.
I start with a quotation from Professor David, which you will find at C3/7(a) paragraph 400. He said this – rather pithily, you may think –
“Much hinges on the purpose of keeping these ‘SC files’.”
Although Professor David, as he himself said, had no special expertise about the keeping of records, he relies on his general experience as a doctor and as somebody involved in general child protection matters/paediatric matters and also a great deal, if I may say so, of common sense.
Where did this concept and why did this concept of “Special Cases Files” begin? We have to go back to Brompton because the concept began at the Brompton Hospital and it continued at the University of Keele, at the hospital in Stoke on Trent. The reasons are these – which I cull from Dr Southall’s evidence. The Brompton at that time was a tertiary referral centre – and I stress the word “tertiary”. Dr Southall’s team – and, again, I stress the word “team” – developed expertise in diagnosing and managing paediatric respiratory problems, especially in cases of ALTEs (acute life-threatening events). They had, by all accounts, a national reputation. They developed equipment to record physical responses of children, the so-called “sleep studies”. The sleep studies were, certainly at the beginning, carried out purely for clinical purposes following referral to this tertiary centre, but those clinical results often translated into child protection issues; in other words, circumstances of a deliberate ALTE, a deliberate acute life-threatening event carried out by a parent or carer. These child protection issues are from here on to be considered in the context of FII (fabricated induced illness) or PII (parental induced illness). We are not simply concerned with child protection in the sense of child sexual abuse – the run of the mill, if I may put it that way, sadly – the run of the mill non-accidental; we are concerned with something completely different. In some respects, and as the expertise became more honed, the referral to this tertiary centre for sleep studies was because of CP (child protection) concerns alone or for mixed reasons. We have a classic example of mixed reasons in the case of Child H – and you will remember the referral letter with the handwritten note on it by Dr Dinwiddie referring to Munchausen’s.
The sleep studies that I have been talking about generated, inevitably to begin with, those old reel-to-reel tapes which stored the information. Subsequently, they used VHS tapes and much, much later they were able to use disks. At the time we are concerned with, we are dealing with reel-to-reel tapes and VHS tapes. Associated with that hardware, if I may put it that way, were the printouts, sometimes up to as much as 250 pages. They were stored, as perforce they must have been, separately from the main clinical records. For future purposes, I am probably going to use the expression “main library file” which I think was Professor David’s formulation of this, but, even though they were stored separately for purely pragmatic reasons, commonsense reasons, they are to be treated and considered as if they are part of the medical records, albeit in two separate sites.
The tapes, whether reel-to-reel or VHS, were per se uninterpretable. If you were to put the VHS tape in your video machine you would get gobbledegook. There is a reference to that in the evidence at Day16/11 and Day 16/12. These sleep studies also generated what are called “infant activity logs” and cardiorespiratory charts and temperature and cPO2 charts. Those three categories of charts occurred on the original notice of hearing. I have a distant recollection, madam, that you indicated at an early stage that that document was put to one side because it was not going to be relied upon. It may be that you do not have it with you now but, originally, you will remember that in appendix 1 there appeared to be references to the infant activity logs and cardiorespiratory charts.
It was originally said that those were a matter of complaint. In other words, and again it may well be that you need to see this as a matter of historical record, but in Child A, there were said to be four infant activity logs in appendix 1; in Child B, a cardiorespiratory chart; in Child H, cardiorespiratory charts, and so forth, and a TcPCO2 activity chart. I will come back to those in a moment but the essence of them are, as I say, that these documents were generated during the course of the sleep study. They were filled in by nurses or by the parents on the ward at the time of the study. These materials – and this is a most important point – formed the basis of the Special Cases Files alongside the bulky hardware. These documents, the infant activity logs, the cardiorespiratory charts, the TcPCO2 charts were used in the interpretation of the physical data generated during the course of the sleep studies. The reference, if you need it, is Day 10/24E. Later, much later, but I will mention it just by way of illustration, a little vignette upon what this team were doing, they developed a unique webcam system. You may remember that Mr McFarlane elicited that, during the course of questioning of Dr Southall. The reference is Day 16/11F. In other words what one had here was the development – if I can borrow a slightly journalistic phrase – of a leading edge or cutting edge system for the monitoring of these children who were suffering from apparent life threatening events.
On the infant activity logs and the cardiorespiratory charts, there was no useful information to a following clinician. It is no longer suggested otherwise. Again, if you look at Day 16/11 and 12 you will see how that is dealt with. In addition, a report – and if metaphorically one can put that with a capital R, a Report was generated by Dr Southall and/or his team members in respect to the sleep studies and that was sent across to the main library file. That Report summarised the activity which had been generated. You will see examples of that in D12 for Child A and D13 for Child H. In any event, data from the study in question, whichever child it may have been, and there were many of them, would, or at least, according to the system, should have been in the main library file in one form or another, so that there would be no additional information clinically which was in the Special Cases File which was not in the main library file, if the system worked. As I say, this arrangement is no longer criticised by Professor David, on the basis, and there is no dispute about this, provided, as I say, there was no extra clinical information in the Special Cases File. Thus, and this is an important point, despite there being original medical records, the infant activity logs, the cardiorespiratory charts and the TcPC02 charts, despite original medical records being the Special Cases File only, which formed the basis of the original appendix 1, there is no suggestion that the mere fact that there are those original medical records in the Special Cases File and not in the main file, there is no suggestion that that has caused damage to the integrity of the medical records. Forgive me if I labour this point but I do not wish the Panel to avoid the implications of that proposition.
It therefore follows that the concept of integrity or damage thereto cannot depend per se purely upon the presence elsewhere of an original medical record because that is what we have got here and it is not the subject of a charge. For the avoidance of any doubt at all, we accept that the Special Cases Files are indeed part of the hospital medical records and an area we will have to look at in some detail, subject to the prevailing medico legal culture, obviously disclosable upon request. This basic structure that I have described thus far, together with the rationale for its existence, is not inconsistent, is it, with the building blocks of record keeping described by Professor David. Again because if it was, your appendix 1 would look very different. Secondly, nor is it inconsistent with the Department of Health circular issued in 1999. That is on the basis that the principles set out in the Department of Health circular in 1999 do indeed represent that which was good practice even before 1999. I take no point on that. You will find a summary of the provisions of the Department of Health circular in 1999 at C3/7(a), Professor David’s report at paragraphs 358 and 359. You also know, as a matter of generality, and medical members will also know only too well, that other records are commonly stored out with the main library file. They are still to be considered, rightly, as part of the hospital medical records but simply stored elsewhere. Professor David set out a number of examples, again at C3/7(a), paragraph 395.
So far I have been dealing with the fundamental rationale for the creation, the idea lying behind the establishment of a Special Cases File. There was, and we say, a coincident rationale for the Special Cases File, which was that it meant that the team in this tertiary referral centre had a pretty speedy method of access to the relevant documentation. A child might become ill again, for the same apparent reasons and be admitted again to the tertiary centre for similar investigations, sleep studies. As Dr Southall told you, access to the main file is slow. It may differ from hospital to hospital. It may differ according to the age in which one is talking about. It would be wrong to judge matters perhaps now in accordance with matters in the early ‘90s or mid ‘90s. Access in this regard was also useful where one had children who were on a home monitoring device so that one could get 24 hour access, if necessary. This was not necessary all the time but it was an available device to have recourse to. Dr Southall explained that at Day 10/12B and Day 11/11E.
Then we turn to clinical audit. After the clinical activity that I have described was over, material that I have described was kept in the Special Cases File. It was kept for two reasons. One was that it was connected to the need for interpretation anyway, so there is a perfectly logical umbilical cord connecting that material up with the bulky material. Secondly, there was an opportunity for clinical audit. Clinical audit is a perfectly justifiable activity, the accumulation of data from so many children, and we know there were by end of the Brompton a lot, from so many children in sleep studies at this tertiary centre was quite clearly, you may think, a consequential result of the investigations which were being carried out. Once you have got a consequential product like that, the use of such data, if for clinical audit, is perfectly legitimate and nobody is suggesting otherwise. The purpose of deploying that material, that data, was to benefit the children they were treating to inform them in this tertiary centre how to deal with, in diagnostic and management terms, these life threatening events. So the underlying purpose, whether it is consequential or otherwise, clinical audit, you may think, is perfectly justified.
In this regard, and I just mention it for what it is worth, you will see the Hempsons letter at C2/6© is not inconsistent with clinical audit as being a separate and consequential reason for the maintenance of the Special Cases File. The primary reasons were set out in that letter. The underlying purpose and the original purpose of Special Cases Files was essentially pragmatic and utilitarian. It was against that background that one has to consider the element which has detained us at length in relation to Child H and Child D, the question of child protection documentation. Therefore let me deal with that. Having established the basic concept of the Special Cases File, the policy began to be developed at the Brompton of storing documentation, letters, correspondence, Social Services generated material, relating to child protection concerns of the FII variety, arising out of or in connection with the sleep study admissions that by definition would have come and gone but after the clinical activity had ceased. That material began to be stored as well in the repository that had already been created and so, it came to pass, that this CPFII, to use the shorthand, correspondence was stored as well in the Special Cases File, despite the cat out of the bag point, which has been used in this case, what about that policy, which has become hard under the microscope. The policy, and we will look in more detail at the question of policy, was, as you have heard, wholly unwritten, but much hinges, does it not, on the intention. The intention here, and it is for you in due course to assess whether intention was achieved or not, but one must not ignore the intention, the intention was to preserve confidentiality of the child and the interests of the child, to protect those, which are paramount, and also to protect the interests of the family. You may say paternalistic. Mr Tyson was moved to describe it as patronising. You may find that a little difficult to stomach. Paternalistic? Maybe, maybe, but you have got to judge that, have you not, in the age in which it was thought of, not now, but in the early 1990s. Overprotective? Again, judged now, maybe, maybe, but Dr Southall, in setting this system up, recognised that medical records are capable of being accessed by many people and you do have to address, do you not, the fundamental difference in content, nature and consequence between the concept of confidentiality in relation to a broken leg, to a disease of the liver on the one hand, for example, and, on the other, allegations and in some cases rank establishment of allegations of FII by a parent when others on the ward arguably do not need to know.
The thinking is crucial and that is and was the thinking and Dr Southall believed that that system was in the child’s best interests. That of course was a crucial issue that Professor David flagged up and, with great respect to Professor David, he is right. That was Dr Southall’s approach at the time. Purpose is all. That is on the one hand. The flip side of that is, if you are going to have for those reasons that separate filing system, you do also need to have a number of elements in place which allows the proposition that they are all part of the main medical records, the hospital medical records, to have meaning. Therefore, one has to contemplate the existence of what I call internal signposting in the main body of the records to point you to the existence of the special cases file. That is one important matter. The second important matter is that you have to have knowledge by members of the clinical team of the existence of the special cases file and you also need – and this is the third element in the triad – the element of accessibility. Those three elements postulated by Professor David – and you see them set out in C3/7(a) at paragraph 417 – are the triad and Dr Southall does not dispute that. I do not dispute it on his behalf. If the system that you set up [is] for two reasons,
(1) basic pragmatism and (2) insofar as child protection correspondence is concerned for perfectly benign but protective reasons, for whatever reason you set it up, in order for the system to work efficiently, you need the existence of the triad. Once you have that, there can be no real objection in principle to that system. There can be no real objection in principle to issues of integrity because, as a whole, you have a system and it works, or should do.
What of Dr Southall’s position in relation to the triad? He told you, you may remember, that there was in fact intended to be an internal signposting system in two respects. Firstly, there would be by definition, when you have sleep studies carried out, material in the main file vis-à-vis the Report at the very least which tells you, if you care to look, that first of all the sleep studies were done and that therefore the Special Cases File is where you are going to find the raw material. Secondly, we have the system generated by what, for shorthand purposes, we have come to call the Jawad letter and again, to remind you of the reference to that, it is C3/7(d)(i). The whole purpose of the Jawad letter in December 1990 so it operates, if it is going to operate at all after that, was to generate through the computer a discharge summary or discharge letter which then goes into the main library file and it has the special cases file number on it. The purpose was unashamedly to save the juniors time – input the data, produce the document, stick it in the main file. That is the system. Of course sometimes – and this is a general observation – a junior might not do that. So, in that respect, the system might break down. Things like that happen. Unless the matter is brought to his attention, you may think that Dr Southall is entitled to assume that the system would work. That is the first matter: the question of internal signposting as a matter of principle.
We accept of course at that time there was no obvious separate tracer element such as a red acetate which years later in 2006 becomes the system of choice in Stoke, paradoxically. That is the internal signposting system. I will have more to say about the acetates later on.
The second element is the question of knowledge and I am talking now primarily of knowledge at the Brompton. First of all, you heard from Mr Chapman at Day 7/59 that other departments at the Brompton had records stored outside the main library file. So, even though he was not himself a man in possession of first-hand knowledge of these – you will remember he came to the scene as a litigation manager after Dr Southall had left the Brompton, so he has no first-hand knowledge of these events – he was able to tell you as a result of what he had come to know that there were other filing systems outside it. Secondly, you heard from Dr Southall himself that, at the Brompton, members of the clinical team, the doctors, the nurses, the level of managerial responsibility in the child department – I am not talking about the wide ranges of the hospital but members of those in the department – and crucially too the members of the medical records department all knew about the Special Cases File. When Dr Southall told you that members of the medical records department knew about the Special Cases File, you would no doubt have immediately remembered what Mr Chapman had to say about this because he told you that he had been told by members of the medical records department who had been in post a considerable amount of time – and I emphasise that – that these separate files were stored and the reference – and it is a crucial reference – is Day 7/59C-E and may I invite you, please, at least metaphorically, to star that and also, for all inclusive purposes, at G on the same page. Mr Chapman therefore bringing to the picture a matter of history given to him by those in place who are in a position to know and they did know.
On the question of knowledge – and this is an observation which applies not only to the Brompton but also to Stoke and I will deal with it when I come to Stoke in a minute – and since knowledge is a real issue in this case, it is amazing, you may think that if an allegation is made here that members of staff at the Brompton who ought to know and those at Stoke who ought to know did not know, it is truly amazing that the other side have not called anybody from either hospital to say, “We never knew” but, instead, they do it though a surrogate, Mr Chapman, with all respect to him, an honest witness doing his best. He relies on what he is told. When I say “amazing”, I make no apology for that. It is now the first occasion, you may think, where the question of the burden and standard of proof really does begin to kick in. Instead, not only does the other side rely on the surrogacy of Mr Chapman but they also rely on the artificial device of attempts made in medico-legal contexts to obtain documents in order to establish the lack of knowledge at either or both of these hospitals and they also use that artificial device – I shall have more to say about this in due course but the phrase “artificial device” is enough for present purposes – to show the lack of accessibility principally at Stoke. You know, to complete the picture certainly on the question of knowledge at the Brompton, of Dr Southall’s complete openness about this when he is writing to Mr Chapman in August 1995 in response to a query – and again we will look at the precise context of this later – when he is responding to a query on 15 August 1995 and the reference is C2/6(a) and I will read out the first sentence, “We always kept Special Cases Files at the Brompton.” The position on knowledge is, in summary form, as I have described and I invite you to accept Dr Southall’s evidence supported as it is in a crucial respect where he has told you that the medical records department at the Brompton knew and that is now supported by the evidence of Mr Chapman.
Reverting to the narrative, in late 1992, we know that these Special Cases Files were transferred to Keele. The entire department in the tertiary centre at the Brompton closed down. It is not every day that whole departments in hospitals, let alone tertiary centres, close down. You might get staff reductions, beds might close, but a whole department closing down is really rather something else. Many if not all of the staff in that department went with Dr Southall to Stoke and they took with them, did they not, one of the most precious commodities in the context of this case, their knowledge. There was no one left at the Brompton doing this sort of work – the reference is Day 13/66. It is therefore in that context that the Brompton ceased to be a tertiary referral centre in terms of paediatric respiratory issues. Staying with the broader picture, we know that some 2,500 Special Cases Files went from the Brompton to the hospital in Stoke and Dr Southall’s estimation was that about one per cent of those 2,500 Special Cases Files contained matters relating to child protection concerns. In other words, matters relating to the question of FII.
Those documents in the Special Cases Files which include Child A and Child H were all transferred to Stoke pursuant to a blanket policy and it was judged impractical to photocopy every one of the 2,500 files but, in a sense, that did not matter because, as Dr Southall told you, that transfer, together with the staff, the transfer of the Special Cases Files, was with consent. Of course, we accept the principle that Dr Southall had the responsibility to inform the Brompton but, if you have consent, that is more than implicit, it is explicit and he told you that at Day 10/16E-H and Day 10/30C-E.
This is an issue upon which I must spend a moment or two and add a few observations. It will be obvious when considering a case like this that it is easy to make suggestions that there was no consent with a nudge and a wink. It is one thing to say out clearly, “You did not have consent”. Mr Tyson has never suggested that. That is very important. If there was an allegation of lack of consent you would expect that to be in the notice of hearing. There is no such allegation.
It is, again, amazing, you may think, that in a case like this where it was the case of an allegation of no consent, in an attempt to be made to prove it there is not a single witness from the Brompton to say, “Southall never had consent to take these 2,500 bags of notes.” One has to think for a minute – albeit that this was in 1992: “If that is the case why is there nobody from the medical records department? Why nobody from the child directorate? Why nobody?”
As Dr Southall himself said to you at the references I have given, he himself is at a disadvantage because any documents that he may have had back in 1992 he cannot lay his hands on now. He may not be able to, but what about documents within the hospital to which my learned friend’s solicitors may have access? If there was anything there which bore on this issue, you would have been the first to hear it, but there is not.
Again remember, for the second time now, the burden and standard of proof. Do not allow the little nudge and wink, the little below-the-radar suggestions. If you are making it, come out and say it. The mischief allegedly arising out of the transfer is the fact of transfer and the effect upon the interests of the children by the fact that the transfer occurred. That is what lies as the alleged mischief in the relevant heads of this charge.
It is equally important to bear in mind that those records, the counterparts of every single one of the Special Cases Files, stayed at the Brompton. Was there a policy about the transfer of records? You might have thought that there might have been one and, indeed, the Panel asked Mr Chapman a number of questions about this. To refresh your memory, at a suitable stage you might care to look at Mr Chapman’s evidence at Day 8/28-29 and 32E. In summary, Mr Chapman said that he remembered that there was a policy in 1999 – and, of course that postdates these events, so it is perhaps of limited relevance. Did you get to see that? No. He told you that he would go and look for it and hand it through the solicitors on the other side. We never saw it. He also told you that he thought that there might have been one in 1981. He could not remember the details but, again, he said he would use the offices of my learned friend’s solicitors to enable it to be placed before you. Did you see it? No. Did we see it? No. That is why I say, if you want to make a case – and I really do mean that, as opposed to float suspicions and float mischief – then make it.
That was the mechanics of the transfer and the circumstances of the transfer. You know – and I should just incorporate this for completeness, because you will have to come back to it – that at the same time as the Special Cases Files went to Stoke, so did the computer which was in the department occupied by Dr Southall’s team. At Stoke, following the transfer, you have to consider – again in general terms now – what is the state of knowledge – arguably the most important element of the triad, which not only should be operating at Brompton but should also be operating at Stoke. Therefore, what about the question of knowledge at Stoke?
First of all, as I have already said, the Brompton staff went with Dr Southall to Stoke and took knowledge of systems with them. Dr Southall told you on Day 10/30D that all the managers in the Child Health Directorate knew of the Brompton Special Cases Files. Indeed, madam, you may remember a little vignette in the course of Dr Southall’s evidence when he told you of the instance when the managers of the Stoke wanted him to get rid of the Special Cases Files for the Brompton and he said no: “No, they are staying here together.” Quite apart from what you may think is his appropriate conduct, that is not the reason for which I rely on that vignette. The reason is, of course, that it demonstrates at the very least at that stage that whoever it was who was dealing with it knew full well about the existence of the Special Cases Files at the Brompton.
Leaving aside the Brompton material, what about the Stoke generated material? Here was are concerned, are we not, with Child B and Child D, the details of which we will look at together later? As to the Stoke generated material, Dr Southall told you that his team members – that is, the doctors in the team, including Dr Samuel, and the nurse specialist, somebody who is concerned with this special expertise, sleep studies – all knew about the Special Cases Files generated at Stoke and they were maintained safely and securely. Access was secure. Dr Southall explained that at Day 10/30 and 31. I would just observe in passing what may in ordinary circumstances be seen to be rather a good thing, that notes like this are kept safe, secure, protected for the future, has somehow been subliminally twisted as if it is equivalent to inaccessibility – which is a perversion of what the reality is.
Again, you may think, it is truly, truly amazing that if you want to make a case that the people who ought to have known – not the top managers in the hospital but the people who need to know, the clinicians, the clinical managers – did not know about the Special Cases Files, call them. You – metaphorically you – have the burden of proving these allegations: call them and Dr Southall will respond. But no such evidence has been called, not from a single doctor, a single nurse or from a single clinical manager at Stoke.
Again, I make no apology for repeating it, you are being asked to infer lack of knowledge and the question of inaccessibility by the artificial device of seeking disclosure of medical records in a medico-legal context. Child D is the example of that and we will have look at those steps in detail in due course. The question of the artificial device of which I speak, of course, is relevant to the question of accessibility and knowledge, but you may have to keep in your minds the particular allegation – and I speak now in general terms – which this goes to. It is head 11(b). You will remember that the allegation is – and I paraphrase – inaccessibility to others involved in the medical care of the child. The proposition advanced by Mr Tyson on behalf of the relevant complainants is that, because, putting it at its highest, the mother in question experienced inconvenience in obtaining medical notes – and we will examine the reasons for it, but, whatever the reasons may be – you can extrapolate from that fact the notion that, therefore, clinicians would have had problems in accessing the medical records for the purposes of medical care. I have to say, even at this stage, what an extraordinary quantum leap to make.
You may care to have in your minds, even before we get to the detail, that those attempts to obtain access to the medical records by the three families involved – there are only three of them out of the four: A, H and D – are, at the very highest, reflective of the then prevailing medico-legal culture, a culture which was, looking back, unduly restrictive, unsatisfactory and the subject of valiant efforts to change it – with great success – for plaintiffs/for claimants. The positions taken were positions which were the prisoners of the prevailing culture at that time. They were positions taken by the Trust – not by Dr Southall.
So much by way of general observation in relation to accessibility and knowledge in terms of, as I have called it, “the artificial device” of using these medico-legal disclosure attempts to demonstrate it, but the question of knowledge and accessibility in terms of the point taken against Dr Southall is, in my submission, dealt a fatal blow because Mr Tyson last week, in effect, conceded the point in all but name when he said that he accepts the clinicians may well have known of the existence and content of the Special Cases Files.
If that is right or may be right – remembering the burden and standard of proof, if it may be right – that is the end of the point. That is the end of the point and the body of evidence directed towards this charade of medico-legal disclosure applications is no point.
Let me turn, again by way of general observations, to the question of policy formation. I have already, I hope, in summarising the evidence of Dr Southall illustrated why there is no intrinsic reason why Special Cases Files should not exist. Primarily – and it is the only one for these purposes that I need – there is a pragmatic reason relating to the physiological material and, indeed, to include copies of other clinical material. Certainly, if that is done, Professor David does not have a problem with it, and provided there is no additional clinical information buried away in the Special Case File, again, he has no problem with it. That was, at the very least, a logical place as a repository for that material.
I have already in this connection observed that there was nothing inconsistent in the Department of Health guidance in 1999, even if, as I say, you relate that back to the prevailing culture, even in the early 1990s, but, in addition, there is nothing in the Children Act which bears on the question of recordkeeping for health professionals in terms of the issue that we have been debating. There is nothing in Good Medical Practice at that time which bears on this issue that we have been debating. The whole of this policy, as you heard from Dr Southall, evolved from joint working with social services, joint working with police, and regular discussions with others about issues which appeared to them to be highly important, such as confidentiality and security. The reference which you may care to look at in due course – on our side, it looks as if those observations are, if I may say so, well put – is Day 11/39. As a matter of pure fact, there was no national policy dealing with matters – again, the subject of the current debate – until 2002. Even at Stoke – and it is ironic that it is Stoke – the policies of which you do have details, in 1993, 1994 and 1995, touch on wholly separate issues. They deal with the storage of documents in locked rooms, access arrangements and so on. It is not until 1997 in Stoke that one gets the first formulation of a policy which might, on the face of, it be said, at least superficially, to apply to the issues that you have to deal with. There are two aspects to this that you, with respect, have to grapple with. The first is that it is of course 1997. I think the date on the document, from memory, is January 1997. So that even if it may be said, contrary to Dr Southall’s case, that that policy was a policy that should have been applied to matters in Stoke, from that date, it only captures a limited number of the documents in Child D. It has no bearing on any of the other documentation, simply because of the dates of the documentation. Of course, as you heard Dr Southall say, Stoke was a different creature than the Brompton. Stoke had both a tertiary and lower level operation. It was not purely tertiary. He told you that that policy in 1997 was not intended to apply to the situation of tertiary referrals where sleep studies were being undertaken. He told you that the whole purpose of the policy drafted in 1997 was to apply to local patients who came in with all sorts of conditions, out of which may have arisen child protection concerns; of course not confined to FII. He explained this fully, you may think, at Day 12/51G 52A.
He of course was not concerned with dealing on a day to day basis with the local patients coming through maybe accident and emergency, and so on, he is still dealing with the tertiary referral responsibility. So it was that from 1997 until 2002 nothing else happened as far as we – and I use that word collective we deliberately – as far as we are aware in the whole of the country. Until we got two publications, first of all, the College guidance in 2002, deals specifically with FII and the Department of Health guidance in 2002, again dealing with FII. Even a cursory reading of both those documents demonstrates that the impetus for them derives from the document which I am sure all of us are familiar with, the 1999 guidance issued by the Department called “Working Together to Safeguard Children”. You can see, if one is not fully aware of it, in the introductory part to both those documents, that was an extremely substantial document, which spawned a whole host of initiatives; these two being the two most important for our purposes.
I am not going to take you to the fine detail of those documents, you have them there and you are able to read them, but I just want to make couple of observations about them. First of all, the College guidelines are directed, rather unsurprisingly, to those in health. The College guidance is summarised in Professor David’s report at C3/7(a) at paragraphs 390, 391 and 392. Paragraph 392 that I have just referred to really summarises what the College had to say about it. Even there, it was not as it were prescriptive in terms of fine detailing, it allows for local initiatives, local policies, and so forth. That is the stuff of guidance very often which comes from the College, you may think, but significantly, it is the first mention nationally of the recognition of a separate filing system which was needed in order to achieve best practice. The counterpart from the Department of Health, which you will find in D19, is directed, you may think, more diffusely to include joint agencies. Even that is not wholly prescriptive. As you can imagine, it allows for local initiative and local development. Even so, it is rather more prescriptive than the College guidance.
It is a document which is rather diffusely, you may think, when you read it again, but it is a document which is intended to include the concept of joint working with joint agencies. Paragraphs 1.1, 1.8, 1.9 and 1.10 really summarise the underlying substance and reasoning of that. The significance of it, indeed the significance of both, taken separately or together, is it is the first time that anyone is aware of, of any national document directed to joint working and a host of topics that joint working may apply to in the context of the FII and Munchausen’s. I do not dispute there may have been others relating to what I have called in the past the generality of non accidental injury but this was a particular problem. What is the significance of this: you may think it is all very well for Mr Coonan to say that, we know that, but what is the significance of it? The significance is in two respects. First of all, the other side seemed to suggest at one point in the hearing, certainly when Dr Southall was being cross examined, that since there was no national guidance until 2002, you should not do what you did, rather than considering it the other way. Certainly even Stoke in 1997 represented, and it would appear nationally, the first attempt to grapple with this problem. Professor David has not placed before you, Mr Tyson has not placed before you examples of any other hospital. Paradoxically Stoke had begun to grapple it. It is perhaps not surprising bearing in mind Dr Southall’s reputation and his expertise. They thought there was an issue. They thought they had to grapple with it. It is a misconception, and we would say the wrong approach, simply to say, well, because there was no national guidance, therefore you were not permitted to do it. Indeed it works the other way.
THE CHAIRMAN: Mr Coonan, we will be looking to have a break shortly. You paused there. Is there more on this?
MR COONAN: No. I have to move on to another document, so that would be perfectly convenient.
THE CHAIRMAN: We will take a break for 20 minutes until about 11.20 then. Thank you.
(The Panel adjourned for a short while)
MR COONAN: To complete the run through the sources of guidance, we come really to the other end of the bookshelf, which is in 2006, when we get the policy promulgated in Stoke, which you will find at D20. I do not know whether, madam, you and your colleagues have looked at this since last November. You have probably had your hands full looking at the transcripts but could I invite you, when you retire please, to look again at the content of D20. It would appear to be – and I do not feel in any way inhibited in saying this – the gold standard which might apply to circumstances that you are dealing with but it is 2006. It appears to as it were distil the guidance which you find in the College guidance in 2002, the Department of Health guidance in 2002, fuse it together and actually set out in local policy terms that which is felt to be appropriate in that hospital.
We have been provided by the other side with no other examples of how other hospitals deal with this problem. All you have, and again the big paradox, the big irony of this is that Stoke appear to have the gold standard. The mechanical system of having this obvious tracer card, the red acetate, which is put in the notes, actually on all accounts, and Dr Southall agrees, and I adopt this for the purposes of my submission, appears to be very consistent. You have a tracer card. If you do not, for whatever reason, want child protection FII material to be in the main library notes, you take them out and you file them elsewhere. The integrity of it is not damaged because you have got an internal signposting system. You have got your acetate. Then, after that activity is finished, you put the notes back in, but any chance of a child coming back in again, then the acetate will alert you and you can take the notes out again. So quite a good system but that, as a matter of fact, was not the system that they had in Stoke prior to 2006. They had a system, which, a phrase used by Dr Southall in another context, but you may think might apply, a bit more belt and braces, but it was a system. Therefore, looking at the way the whole picture evolved, Dr Southall is, you may think, entitled to describe this as an evolutionary process, which by the practitioners in Stoke have come to the position they have done in 2006. I just mention, in passing, that the Climbie recommendations do not help one way or another, you may think. That is at C15. You have not been given the context which allow the recommendations to emerge from that, nor have you been given any indication in any circular or publication which adopts and directs the recommendations of Climbie. In any event the high point in terms of guidance to health still appears to be the Department of Health paper in 2002 and the College paper in 2002.
To come to the end of this process, it is right to draw your attention, madam, again, to what Dr Southall’s view is on this process, he now being asked these questions in 2007, as he was. I want to give you three references. I may in fact take you to them so that you have them flagged up. The first one is in Day 13/43C D. I will just read it out:
“At the time though, such guidance as there was, or was not, to help in that way was not available and we did what we thought was best at the time. Looking back 20 years from now, as Professor David is and saying it is much better to do it that way with photocopies, I cannot disagree. I think it would have been okay, except for the issue then of patient confidentiality, which is a different issue”.
Then at Day 15/55G he said this:
“Remember though that we were one of the very few units in the world really that were dealing with considerable numbers of children with factitious or induced illness on a regular basis, and so we were finding our own way forward with no guidance at all in that area, because we were one of the few centres dealing with it, and doing our best as time went on to decide on how to deal with the issues. As you can see, this issue of keeping confidential was the main point, [that] is followed through in 2006. There is an agreement that you do have to be very careful about the confidentiality of the records kept in factitious or induced illness cases. So I still think this is an evolution of which we played a ... significant part, in shaping future policy, and then to be criticised because we did not do it perfectly in the beginning, I do not think is quite fair myself. That is my opinion.”
Then finally on Day 16/7C D, Mrs Lloyd presciently asked Dr Southall what he would do differently with the benefit of hindsight. This was his answer:
“If I did it now, I would firstly make sure that the whole management system in the hospital was 100 per cent on board in writing. Secondly, I would have that tracer card that is mentioned in the two notes so that you [know] where it was. I think the system in 2006, which I have been helping to set up, is the gold standard that I would support if I did it now. What else? I think it is really to do
with having written protocols rather than policies. I do not think the word protocol means it has to be written [and so forth].”
He goes on to deal with the question of having written protocols is a feature of modern life and modern life in the NHS.
Those three quotes that I have given you, madam, really provide some insight, we respectfully suggest, certainly on how Dr Southall views it now, but also provides some insight – and his approach to the development of this policy in relation particularly to child protection and, very particularly, in dealing with the crucial issues of FII, which are very different indeed.
Madam, those conclude all the matters that I want to deal with by way of what I have called general preliminary. I am going to now deal directly with the matters on your notice of hearing. I am going to start first of all with the first child who is Child A. You will see on your notice of hearing that you are dealing here with the MRI report dated 11 February 1987 in the Special Cases File at pages 131 and 132.
If I may take you to head 10(a) first of all, there is a live issue here. It is incumbent upon the other side, upon Mr Tyson’s client, Mrs A, to prove that it was placed by Dr Southall or on his behalf in the Special Cases File. So, immediately the question of the burden and standard of proof arises as an issue. May I clear away some of the preliminaries. It is accepted that this document as a document – and I emphasise that – is an original medical record and we accept that it was placed, but placed at some stage and later found in fact in August 1995, in the Special Cases File, but we also accept that, at all material times, it should have been in the main file. Dr Southall has never disputed that.
His position, developed in the course of his evidence, is that he did not place it in the Special Cases File. It was not placed in there pursuant to any policy – I pause there to say nor could it be; it does not have anything to do with the precise nature of the sleep studies, nor does it have anything to do with child protection – and his position is that he had absolutely no knowledge that it was in the Special Cases File until August 1995. The reason why August 1995 is important is because that is when it was found and disclosed by Dr Southall following through a request which we will look at in detail later, and the reference for that is at C2/3(b) at page 22 and Dr Southall dealt with his state of knowledge at Day 13/22C. In other words, it follows that Dr Southall had no knowledge that the MRI report was in the Special Cases File when the Special Cases File was transferred to Stoke at the end of 1992 because it would follow too that he would have no reason to suspect that it was in the Special Cases File because, by definition, it ought to have been in the main file.
Mr Tyson very fairly accepts – and he accepted this in his final speech – that the MRI record may have got into the Special Cases File by mistake. In other words, it was misfiled or put there, as he floated with you, by a secretary. My submissions in relation to this are as follows. Both the original and the copy of the MRI – and you will see both those documents which are set out in your Appendix 1 in C9, the little bundle, at pages 131 and 132 – in the bundle that you have are photocopies but, in the actual original bundle – I do not think that we have it available now, we may have, but it was certainly available when we last met in last November – they are filed together. The original and the copy are filed together; they are in a pink file, from memory, with a pink cover on it or buff pink file and can be no doubt checked again by the Panel if necessary. Significantly, they are together. Equally, there are no instructions written on the face of either document, in other words original or copy, directing where they should be filed. As a matter of fact, there is no evidence as to who filed it in the Special Cases File or when it was filed in the Special Cases File and it follows from that that there is no evidence that in fact it was the secretary who did it. Mr Tyson floated it and I used that word advisedly, that is all he can do, but there is no evidence that it was the secretary or anybody else. Equally, we say that it is unhelpful, putting it neutrally, to assert that it was filed “on behalf of Dr Southall” even if it was filed by a secretary merely upon her own initiative and/or because of the fact of the existence of the Special Cases File, for this reason. The fact of the existence of a Special Cases File, as I hope I have sought to demonstrate helpfully to you, cannot be criticised. If a Special Cases File holds the physiological material as it does and provided that there is no additional physiological material hidden away or stored away, there is no problem. It is very difficult to see how, if one accepts an error somewhere, speculatively in circumstances unknown, to say therefore that it was filed on his behalf. So, our submission in relation to head 10(a) is that that fails.
The next matter is head 10(b). We accept – as indeed Dr Southall does – that the paper original was not, in terms of the times that I have already indicated of course, in the main file. The issue is whether that record – and I am looking at the phraseology in head 10(b), “the cited medical record” – is or may have been at an earlier stage elsewhere in the hospital medical records. Head 10(b), just as with any other live head of allegation, carries with it, as I have already said, on the face of it a positive assertion by the other side and therefore it carries with it the bourdon of proof point to which I have already drawn your attention, but it was in this context that Mr Tyson reversed the burden of proof in his closing and he said that you cannot be sure that this record was on the computer. Well, that is not for us to prove and Mr Tyson was wrong in principle in saying that as he did. It is the other way. The burden is upon the complainant here, Mrs A, through her legal team to prove so that you are sure that it was not on the computer.
We know that an original record was printed off the Brompton computer – a computer at the Brompton today, nothing to do with the computer that went from the Brompton to Stoke, the Brompton computer today – by Mr Chapman in 2006. He, or somebody on his behalf, went to the computer, pressed the button and there the print-off came and we have that set out in a letter in D6. Mr Chapman agreed – and I shall give you the references because it is a very important issue – that the computer system that we are discussing now, the one at the Brompton, in one form or another, may well have had this MRI record on it throughout the period in question. It also appears from the evidence that when attempts were made to locate the records including the MRI – and we will look at those attempts in a minute – no one at the Brompton – and that includes Mr Chapman – interrogated the computer. It is no one’s fault – it certainly is not Dr Southall’s fault – if nobody did not think to press the button on the computer which has been there all this time, or at least the operating system in the computer, but that has absolutely nothing to do with the existence or otherwise of Special Cases Files.
I invite you to read the following couple of references on this point: Day 8/12B to Day 8/15C and, madam, the series of questions that you put on Day 8/30A to Day 8/31B to Mr Chapman. In addition, Mr McFarlane put a series of questions to Mr Chapman at Day 8/29F to the same point. If the position – and I am still on head 10(b) – is that this record of the MRI report was or may have been – that is all I need to raise – on the computer system at the Brompton, then head 10(b) fails.
Of course, I cannot leave matters there because you may not agree. So, I have to deal, for the purposes of the argument, with the rest of the heads as they bear on this document and I go straightaway to head 11(a), the question of integrity. Of course, again I perhaps do not need to labour the point but head 11(a) would fail if head 10(b) fails. In any event, what you are dealing with here is this MRI report. When you are considering the question of integrity, you will remember that the main medical record, that is to say in the body of the notes themselves, actually points to the existence of an MRI report and the reference you need for that is C2/3(e), page 13. Thus, any diligent assiduous clinician at least seeing that would, at the very least, follow through an obvious trail either to the MRI X-ray department and/or to the computer where, if the button were to be pressed, he would be pressing the button a little earlier than Mr Chapman did with identical results.
It follows that given irrefutable signposting internally, however the MRI report got into a Special Cases File which I have dealt with already, the mere fact that it is filed elsewhere albeit inadvertently cannot mean that the integrity of the records has been damaged. I repeat what I said earlier to you. We know that as a matter of principle because we know that the infant activity logs, the cardio-respiratory charts, all of which are original medical records, were filed in the Special Cases File of which no complaint is made, and you also know – and I am not sure if I gave you this reference, forgive me if I did – that Professor David gave you examples of other filing sites of records in his report at C3/7(a) at paragraph 395. Therefore, so much for the question of integrity being damaged.
I move on to head 11(b), the question of accessibility. During the course of my preliminary observations to you, I drew your attention to head 11(b) as a matter of general principle and drew your attention to the precise phraseology there, the question of accessibility, if you like, being judged in the context of those involved in the medical care of the child in question. It is – as I have already said but maybe I could be permitted to repeat it since we are dealing with the first of these children – an unwarranted inference to draw to the effect that clinicians would have had a difficulty merely because it might appear that solicitors had some difficulty in a medico-legal setting to obtain disclosure. In any event – and this applies in the case of Child A as it does in the others – you have heard no evidence from any clinician at all to the effect that there was a problem in gaining access to the MRI report, no evidence from any nurse or any clinical manager at the time either at Brompton or Stoke to say that there was a problem about this MRI report. I have to deal with the question of accessibility in terms of the attempts medico-legally to obtain the documents.
On this topic, could I remind you, please, of the essential evidence given by Mr Chapman in terms of references. It is at Day 7/56-61; Day 8/2F-16C; Day 8/24A-27A and Day 8/29E-31D. For completeness, I should also add Mrs A’s evidence on this, which is at Day 5/48-66.
Could I come to the nub of the point: the proposition is that this was inaccessible and/or the relevant hospital, either the Brompton or Stoke, had no knowledge of the material and, in particular, the SC File, for two reasons: (i) Mrs A only received the SC File 14 months before the hearing (14 months before last November) – that is what she said; and, (ii) she only saw the MRI report in a Special Cases File once that was disclosed. At face value, she appeared to be saying: “Look, this MRI report was published in February 1987. I did not get it until 2005. Eighteen years.” That is what she is saying, but it is true? Is it accurate? That is what I need to address.
Mr Tyson put in a spreadsheet, C20. I am not going to work within the confines of that spreadsheet, I am going to make the material come alive. You can check what I am saying against such references as I have given you and the references that are on the spreadsheet and I am going to give you a couple more. I prefer to do it this way, so that you will get the flow of the narrative, and then you can see the extent to which what I am submitting is in fact made out or not.
The story starts way back in 1987, when Mrs A instructed multiple solicitors, five, in the period 1987 to 1993, six years. She instructed them to seek to obtain her child’s medical notes, which she was perfectly entitled to do. Those attempts to obtain the notes were made in the context of wardship and, latterly in that period, clinical negligence proceedings. The attempts were directed to the Brompton Hospital Trust; not to Dr Southall. What did the Trust do? That is a very good question, because they resisted disclosure for six years as a matter of law.
You can see what they did, the attitude the Trust was taking and why, in three sources of evidence. The first is D5, a letter written by the Trust’s solicitors to its client, the hospital, in September 1987. I would invite you, in due course, please, to read that very carefully indeed. You will find the history of it conveniently summarised in Mr Chapman’s letter, dated 22 March 1995, addressed to Professor Southall. It is at a later stage, but it is helpful because it summarises the historical footprints. You will find that at C2/3(b), page 6, all neatly tied together by Mr Chapman in his evidence at Day 8/4-6. The Trust adopted this attitude, rightly or wrongly, but in accordance with the prevailing medico-legal culture at the time. In 2007, of course, it is to be deplored, it would not happen, but it did then. Pre Woolf, it did happen.
As a fact, Dr Southall had consented to the disclosure of the medical notes in 1991. We know that because it is in that letter at C2/3(b), page 6. The interesting point is that here Dr Southall is saying, in accordance with the arrangement which operated in that day and age, “Yes, I have no objection to disclosure?” But what do the Trust do? Resist disclosure. That is not Dr Southall’s fault. There is absolutely no basis for saying that Dr Southall, at that stage, when he was giving his consent in principle, was limiting consent to the main file. He was being asked, as a matter of principle, to the disclosure of the medical notes. That is all the evidence is before you.
In any event, however, the Trust did not give Mrs A anything. In 1993 – and this is the next period 1993 to 1995 – new solicitors came into the picture – and I mention their name simply to herald the beginning of a new period – Holden & Holden. I do not need to mention the names of the previous five, they fall into that first period, but there was, at this stage, a sea change in the attitude of the Brompton and their solicitors. In April 1993, the Brompton Hospital disclosed the main library file – which they of course were still holding – although not, it would appear, the CT scans or the nursing Kardex. We know that from the correspondence. It is a fact that the Special Cases File was not in fact disclosed at that stage. Of course the Special Cases File, at this stage, was in Stoke.
I would just pause in the narrative to observe that it is, again, not surprising that the CT scans or the Kardex were not disclosed immediately by the Trust, because very often they end up, certainly scans, being filed outwith the main library file, as you would expect.
Having gained disclosure of the main library file in or about April 1993, these solicitors Holden & Holden appear, on the face of it, not to have taken the matter any further forward and so nothing happened. They did not appear – and I think I am entitled to make this comment – to have looked at the main medical records that they had been given and seen on that page to which I have made reference that there was a reference to an MRI and, thus, there was likely to be a report. They did not press the buttons at all.
Matters were left to rest until December 1994, when a seventh firm of solicitors were instructed, a firm by the name of Thomson Snell & Passmore. I am going to use “TSP” for short. In December 1994, TSP made a request of their counterpart solicitors, Norton Rose, who were the solicitors for the Brompton Trust. They made a specific request for any of the sleep study tapes and a specific request for the MRI report. For the first time, the light bulb had been switched on and TSP see there is an obvious reference in the medical notes to the MRI. It may be – as you will see in a few minutes – that they had the assistance of Mrs A, who told Mr McFarlane, I think it was, in response to a direct question, that she was told what the report said at the time the MRI was done back in 1987. However, the light bulb came on and TSP, as I have said, sought from Norton Rose the document and tapes.
The next step was 22 March 1995, the same document to which I have now referred twice already, C2/3(b) page 6, when Mr Chapman writes to Dr Southall. There was almost a three-month delay before he did that. That is not a criticism of Mr Chapman, it is just a fact, but that is not Dr Southall’s fault. He wrote to Dr Southall asking Dr Southall if he had the tapes. That request is limited to tapes. By this stage, Mr Chapman had been informed by the Brompton that separate records existed and I have already given you the references for Mr Chapman’s state of knowledge which he had acquired from the folk at the Brompton. He writes that letter, as I have said, to Dr Southall. Dr Southall replies, four weeks later, on 26 April. To summarise, he says: “Yes, I do have the tapes” at C2,3(b) page 9.
Nearly three months later, Mr Chapman gets around to writing – and I do not mean to be unduly pejorative but that is the fact: he got around to writing – another letter to Dr Southall in which he actually asks for the tapes: C2, 3(b), page 13. So far, there is no reference to MRI in this correspondence. A week later, Dr Southall sends the tapes to the Trust’s solicitors, Norton Rose: C2/3(b), page 17. Having done that, Mr Chapman, six days later, writes to Dr Southall and says: “Do you have any other records of Stoke?” C2/3(b), page 18, and on 15 August 1995, Dr Southall replies. This is the letter which begins, “We always kept our own records …” the Special Case Files, at Stoke. I have dealt with the importance of that part, but it is the second part of the letter which is relevant for the immediate purposes that we are discussing. He says, in effect: “Yes, we do. I have arranged for that to be photocopied” on 15 August 1995: C2/3(b), page 22. He was as good as his word. He sent the photocopies of the material in the Special Cases File, which included the MRI report – which inadvertently was there in the Special Cases File, and Dr Southall of course came across it.
We are still only in 1995 and at the point at which the MRI report is thus discovered and disclosed and disclosed to Mrs A’s solicitors TSP. It therefore follows, as Mr Chapman agreed – but it is a matter of obvious comment – that TSP have had that since October 1995: Day 8/11F. Quite how on earth Mrs A, between her and her erstwhile solicitors TSP, can come along here and say in support of an argument based on inaccessibility that she only got the MRI file in 2005-06 rather raises a number of interesting points. The fact is that she has had the MRI, through her solicitors, since 1995.
Of course, it is a fact that when the main library file was disclosed by the Brompton in 1993, it took until August 1995 for the Special Cases File to be disclosed. Of course, therefore, there is a period of time where that is self-evident. It is a fact because they were in Stoke. There are two factors that one has to bear in mind here. The first is there was this absence of any specific request for the MRI until August 1995. That delay between 1993 and 1995 does not, however, mean that the relevant people at the Brompton did not know. All that means is that Mr Chapman might not have specifically known or, if he did, he himself did not specifically ask. The danger in this, as we would say, initially superficial analysis, is that one is extrapolating a state of complete ignorance on the folk that were in a position to know, simply because time was taken by the man charged in litigation with seeking the disclosure of records and handling them.
That is why, again, applying appropriately the burden and standard of proof, it is impossible to say that head 11(b), with regard to the specific terms in which it is formulated, is not satisfied.
I move to head 12, obviously it follows, my first position would be, that this fails because heads 10 and 11 fail. I cannot assume that for the purposes of the argument, so I deal with it in this way. What I say here is of general application to head 12. The highest that one should approach head 12 is on the basis not that it was Dr Southall who filed this MRI report but the highest is that somebody else, a secretary or somebody else, by definition on his behalf, because to get to head 12, you have to have found head 10(b) proved, but on that basis that it would be an inadvertent filing by a secretary in her discretion, as Mr Tyson put it. In relation to that, the pejorative elements of head 12, I just take compendiously (a), (b) and ©, have got to take into account the fact that the SC File itself may well have been justified, as I said earlier, as a matter of principle. Any inadvertent filing therefore has simply gone into that repository because a secretary was not directed otherwise. I come back to the point that there was no writing on either face of the documents.
In any event looking again specifically at 12(a), you have to take into account, do you not, this is not put on the basis it was deliberate. There is internal signposting in the medical records. The films are still available, the actual MRI films. I come to the reference that I flagged up earlier, when Mrs A told the Panel that she was told of the content of the report back in 1987. That is Day 5/64D F. Madam, the observations that I have made thus far are matters which can be as it were spread over in the constituent elements of head 12. I would be repeating myself if I sought to subdivide them any further than I have done. So I leave you with the matters I have already highlighted.
I come therefore to head 14. I note in passing of course that head 13 is admitted as a matter of fact. Head 14 is concerned with the question of transfer. I have already made submissions about the question of consent in terms of the Special Cases File as a file. There is no suggestion at all that there was specific consent in relation to the specific document. It is a consent that applies to the entirety of the special cases themselves. What I do say to you in relation to head 14 is that you should approach it on the basis that this was not a deliberate act in relation to the MRI report. There was no reason for Dr Southall to think that it was in the Special Cases File. You are dealing with a single document. Even if the overall purpose of transferring the Special Cases File for Child A, which held inadvertently the MRI report, if the overall purpose was clinical audit by that stage, that cannot amount, in relation to 12©, to an abuse of his professional position. There would be a legitimate purpose to benefit patients on the basis of clinical audit.
In terms of the question of transfer and risk of Child A returning to the Brompton, we would say, quite shortly, that risk was indeed remote, particularly since the department was no longer in existence. The main records remained at the Brompton, so did the films, so did the computer. There is of course, as you know, the internal signposting. We should add into the mix the fact that the clinical staff at Stoke, who had removed there, knew of the Special Cases Files which had gone from the Brompton and would therefore be in a position to know of the existence of the Special Cases File in relation to Child A. Running through the whole of this case, Child A, is the – and we would say – rock solid position that Dr Southall had absolutely no idea that that MRI report was there, coupled with the concession, by Mr Tyson, that it may have been filed inadvertently.
Can I move to Child B. You are dealing, in accordance with your notice of hearing, with a single document, which is the Crawley referral letter, which is in fax form. This is to be found in C17. It is in the document in other forms but the most complete set and the clearest set, in photocopy terms, is in C17. It may be that one might need to look at it again as we go through this, simply to locate the fax timings on the top.
Before looking in any detail that is necessary with this document, could I go straightaway please to head 10(a). It is accepted that this is an original record, even though it is in fax form, it is an original medical record. It is accepted that it is now, and I emphasise the word “now”, not in the main file and only in the Special Cases File. It is also accepted that it should have been filed in the main file at the beginning. I must make the position clear, that it is not accepted that it was not placed originally in the main file. So there is an issue to try and the issue is whether it was or may have been placed in the Special Cases File by Dr Southall or on his behalf, or, as Mr Tyson would have it, in that context, by his secretary. Now, again, the other side, through Mrs B and through her legal team, must prove this. The burden and standard of proof, again, apply to this particular forensic point.
The first point to be made and, again, in fairness, Mr Tyson really does not dispute this, and so the door really is wide open, but it is quite clear on an examination of the original Special Cases File, and you have the Special Cases File, the photocopies of it, but we looked at it, in particular the original of it, last time in November, it is quite clear that there are what may be called alien documents in that file, demonstrating that it has been disturbed, probably by the inquiry in 1999/2000 and probably through the involvement of the medico legal department of the Trust. The nature of the documents in it make that absolutely clear and it is not suggested that Dr Southall put them there. Mr Tyson goes on to say, again, very fairly, that if that is or may be the reason, then his case under 10(a), and it follows under 11 and 12, fails. We submit that that is right, that this allegation does fail for precisely those reasons. It is a classic operation of the burden and standard of proof. The requisite standard has not been reached, one cannot say so that you are sure as to what happened, and therefore that is the end of it.
I cannot of course know that you will follow the implicit invitation of Mr Tyson, and indeed in so far as it was implicit, my explicit invitation, and so I ought to deal with the other matters that are flagged up by the notice of hearing. My fallback position, if I can put it that way, is that the highest that it can be put here is that a secretary or someone else misfiled it. Dr Southall himself of course, as you know, denies filing it. Dr Southall has made it clear to you that filing it in the Special Cases File would not be in accordance with the policies that I have summarised to you earlier this morning. So there is no basis for any decision to put it in. The fax dating, and I entirely agree I think as far as it goes with Mr Tyson on this, the fax dating is significant. Can we just look together because I am not sure that you actually looked at the document when Mr Tyson was taking you through it. It is quite clear, on looking at C17, that at the top, on 3 September, that page and the second page in, relate to an arrival on the 3rd and that documentation has Dr Southall’s handwriting on it, “Hosp[ital] notes on ward 112 ASAP”. The subsequent correspondence in the clip all have the 2nd on the top: 2 September. The point was made, and Dr Southall agrees, that, on the face of it, the handwritten note directing it to go to the ward, only in so far as it is a physical piece of paper, applies to the letter behind it, which is the letter from Dr Britton to Dr Lewis. So one is not a position to submit that on the relation to the physical evidence that the handwritten note of Dr Southall sent the Crawley referral fax letter directly to the ward. I do not submit that. That would be a quantum leap for me to take and I do not take quantum leaps. The handwritten note, as I say, relates to the second letter fax. Here is the link: Dr Southall told you that his intention would have been the same for the Crawley letter of referral as it was manifestly for this letter. He told you that on Day 13/27E. That must, we would submit, be a wholly reasonable inference to make, that he is saying: send to the ward ASAP, received on the 3rd. There is no specific direction in relation to the material on 2nd, which is the Crawley referral letter itself. I want to come back to that in half a moment.
In fact, there is some evidence that the referral letter did go on the main notes on the ward, albeit maybe not immediately. We derive that basis for that comment from the letter dated 14 October 1993, which you will find at C2/5(e). Perhaps, madam, you might care to turn that up. It should be a letter to Dr Lewis. The first observation to make is the date 14 October 1993. It is after the referral. It is written by Dr Southall to Dr Lewis, from Keele, and in the first paragraph, on the fifth line, Dr Southall says this:
“[Child B] was admitted under my care without a referral letter. In fact, a referral letter did not arrive until sometime after admission as a fax which did not find its way into the notes until much later.”
It may be, the best one can do, looking back many, many years, that the basis for an inference that that is a reference to the fax going on to the main notes on the ward, coupled with the point I have already made, about Dr Southall’s writing on the letter from Dr Britton, with a direction for that to go on the ward, and Dr Southall’s evidence that he would have intended the same thing to happen to both documents. That is why there is an issue in relation to head 10(a) and we invite you to find that not proved for reasons I have indicated.
May I move to head 10(b). In relation to this child, there is no issue about this save that I draw the Panel’s attention to the use of the present tense. I make no submissions about it provided that it is understood that our position is that we do not accept that it was at all material times not in the Special Cases File.
Therefore, I come to head 11(a) and the question of integrity. I make two short points. Obviously, it depends on your findings in relation to head 10 but, in any event, there is a clear linkage between the documents which were in the main file and this letter in the Special Cases File if it was there. Assuming that it was, there was the necessary linkage and therefore that is why it would be wrong, in our submission, to find that merely because it was in the Special Cases File, therefore damage occurred to the integrity of the note recording system. I draw particular attention to the letter at C2/5(e) at which we have just been looking. It is manifestly obvious that there is a referral letter there which quite clearly has to be either in the main file or in the Special Cases File, it is obvious.
The next issue is head 11(b), accessibility. I make one or two very short observations in light of the preliminary observations that I made to you earlier this morning. This is a pure Stoke case and you have been reminded of the evidence that everyone at Stoke knew about the existence of the creation and maintenance of the Special Cases File at Stoke. There is clear internal signposting anyway and you have not heard a word from anybody at Stoke to the effect that this Special Cases File or any document within it was inaccessible.
So far as head 12 is concerned, again without wishing to repeat myself, any deliberate placing by Dr Southall would have been irrational and so, in your consideration of head 12, we invite you to proceed on the basis, as his evidence has, that he himself did not place it there and, absent inadvertence due to other reasons, any inadvertent placing could only therefore have been by a secretary and, even if that is right, it is extremely difficult to see against that background how one can therefore establish any of the heads in head 12 and particularly head 12(b) and ©. In relation to head 12(a), again you have heard no evidence from any clinician to the effect that there has been any problem at all in relation to the location of this document in relation to clinical care of this child. Madam, that is all I say about Child B.
I move on to Child D. If you look at Appendix 1, you will see that you are concerned with two classes of document or two categories of document: the first is a single document which is called a patient data form dated 13 December 1994, page 313 in the Special Cases File, and again you will also find it in C9. All of these are conveniently put together in C9 to save you having to trawl through all the Special Cases Files themselves. The second category is what I call assorted correspondence. In relation to that associated correspondence, not only are they in the Special Cases File but we accept that they are original medical records, no problem with that, and we accept that they are not as documents in the main file.
May I deal on its own, please, with the patient data form. This document, as a document and I stress that, was in the Special Cases File and was not in the main file. You know that it was generated from the computer which sits at Stoke. You can see the correlation between this patient data form in Appendix 1 and that which appears on the computer at Stoke by looking at Appendix 2, page 1. You see the complete correlation, and there is agreement between my learned friend and I that that is the case.
I also accept that, on a strict purist approach, this document as a document should have been in the main file but – and, madam, there are quite a few buts here – all the data in the patient data form, save in one respect and that is a reference to the birth weight of the child, is in the main file in any event. The information in the document was collated, you were told by Dr Southall, for the purposes of clinical audit and the creation of a database and had no real clinical relevance, Day 11/7A-B. In any event – and this is another but – all the data in the document is in fact in the computer in the academic department in Stoke to which people had access and there appears to be dispute about that although my learned friend complains that the access group was small. That is another matter and we will look at that later but people had access to it. We accept that the computer sitting in Stoke and the data within it is part of the hospital medical records. We are simply talking about different repositories. That is why, in relation to this document, we deny head 10(b).
Rather than laboriously go through each of the other heads in relation to this single document which I do not think is productive, I am going to make no further submissions along that line in relation to the other heads because I have taken the view that the correspondence category of documents in relation to this child will end up being determinative of the outcome. So, whatever view you are going to take will determine that and, in other words, this particular document is in effect de minimis.
Therefore, I am going to turn to the correspondence and this correspondence is pure Stoke and it spans the period from 1995 to 1998, a quick glance down Appendix 1 tells us that. I am going to begin by drawing attention to a concession that Dr Southall made. He accepted – and you can find the passages at Day 11/6D to Day 11/21C over the space of several pages as he was taken through these document – that some eight letters should also have gone into the main file, in other words with copies in the Special Cases File. In other words, he accepted that it was not appropriate that some of these letters were only in the Special Cases File and he has accepted that and you can see the numbers in C9 and, if it helps, I shall give you the page numbers in C9 in order that you can tick them off: pages 281, 276, 273, 264, 75, 31, 16 and 9. I do not seek to go behind that; he has accepted that that was an example of where the policy was applied less than rigorously. He does say that, as to the balance of the correspondence, that was filed pursuant to his overall policy where child protection and FII child protection concerns had been raised and thus stored after discharge and I have given you my submissions as to the origin of that policy.
Madam, the clinical notes in relation to Child D taken as a whole – and you will be relieved to know that I am not going to embark on this exercise – show that there were quite clearly child protection FII concerns and indeed Dr Southall thought that Mrs D was exaggerating the symptoms of her child. There is an example where she described a child as suffering from faecal vomiting – you may remember that – and this was asserted – and the mother agreed that she did assert that – by a mother who was an SRN and you may remember therefore there might be some justified basis for Dr Southall describing here as “apparently SRN” because of the expression that she used. You will see the reference to that, certainly so far as it affected Dr Southall’s mind – at Day 11/4H and Day 16/13B.
It may be helpful when you are considering the various heads in relation to Child D just to bring back to mind Dr Southall’s overall purpose. There are two quotations which perhaps I could just read to you. He was dealing with page 70 in Appendix 1 for Child D and the reference is Day 11/17G and this is what he said,
“… I would not want such a letter in a hospital record that could be seen by people who do not need to know”.
Then, another document in C6 which is the Special Cases File at page 238. He was asked a question by Dr Sarkar and he said that he would not want that to be seen by all and sundry on the ward. That was said, if I may give you the reference, Day 11/3A during your private deliberations.
These may be seen by the Panel as examples of what I was moved to describe as being paternalistic and overprotective and indeed I do make that submission. In considering the other heads of charge here, you have to attempt to balance his intention and his reasoning at the time as being a product of the age at the time against what actually happened.
THE CHAIRMAN: Mr Coonan, I am wondering when we can have a break. I do not know about the other panel members but I am personally finding that my concentration is going a little. I do not want to interrupt you at an inconvenient moment.
MR COONAN: If I may be given two minutes, I can deal with heads 10(a), 10(b) and 11(a) and then I could begin the question of accessibility after the break if that would be helpful.
Madam, for the reasons I have indicated, there is no issue on head 10(a) at all. Your way is clear there. Head 10(b), there is no issue save in respect of the patient data form that I have already made submissions about. Head 11(a), integrity and this is where, as I said earlier, the correspondence may prove to be determinative all the way. My first submission is that the fact that it was filed separately does not damage the integrity of the medical records system. By way of illustration, I indicate that, even under the 2006 Stoke policy using acetates and so forth, the mere fact that for however long – and it may be a substantial period of time – you take out correspondence, documents and reports and put them to another site away from prying eyes and put a red acetate in cannot be said to damage the integrity of the medical record system. So, it is a question of fact and degree, is it not? If there are sufficient signpostings or indications in the medical records themselves, the main records, then the integrity cannot be said to be damaged. The key – come back to the triad – is knowledge and accessibility. I come back again finally to the point – I do not want to repeat what I have said before – that the evidence that you have heard from Dr Southall is all one-way. The people who needed to know at Stoke, the clinical team, were fully aware of this material and therefore accessibility and knowledge is not a problem and nor was it a problem then.
I do have to deal with this separate issue of accessibility and access to medical notes and perhaps I could be permitted to do that whenever you want to sit again.
THE CHAIRMAN: Thank you. If you are content to break there, we will take a break for an hour now until around 1.50.
MR COONAN: Madam, I appreciate that a lot of this material, as Mr Tyson was saying to me, is fairly dense. I am conscious that the Panel have to take quite a lot in and there is a lot of documentation. I would be grateful if you could give me some indication, perhaps at two o'clock, as to when you would wish to sit this evening, so that I can plan my material and not, whether inadvertently or intentionally, overload you.
THE CHAIRMAN: Thank you, Mr Coonan. We will talk among ourselves over lunch.
MR COONAN: Thank you very much.
(Luncheon adjournment)
THE CHAIRMAN: Mr Coonan, before lunch you invited the Panel to consider how long they wished to sit for today. In fact, following certain discussions, the Panel wishes to adjourn until tomorrow morning at ten o'clock. We will not be sitting any further today. Thank you.
MR COONAN: Madam, thank you for that indication. Perhaps you would permit me to say something about my timetable for the rest of my speech. I have been giving some thought to this and a number of considerations have presented themselves to me. The first is, of course, as I said before the luncheon adjournment, that this is dense material. I am terribly anxious that the Panel do not feel as though they are being, as it were, crowded with information and submissions. It is an extremely important case from every angle and I am terribly keen, as you can understand, that, when we get to it the various considerations, the cases do not blur, one into the other. It is the only time I have to address you on these matters.
Bearing in mind your indication that you will sit tomorrow at ten o'clock, I was thinking of dealing with the rest of the SC Files on the computers and then, hopefully, dealing with no more than Mrs D and Mrs H – because they are separate cases and I am terribly concerned, as I have said, to avoid the blurring element of this – and then to deal on a separate, freestanding basis, with the final case, Mrs M, on Wednesday morning. If that meets with your approval, it would mean that the Panel and I understand each other and I do not feel under pressure to deal with all this material by close of play tomorrow.
THE CHAIRMAN: Mr Coonan, I am sure that makes sense. If any panellist would like to raise a matter, they can indicate, but it seems to make reasonable sense to me. I do not know whether Mr Tyson has anything to contribute.
MR TYSON: If that is the way my learned friend feels it is fair to deal with the matter on behalf of his client, I am happy to adopt his approach.
THE CHAIRMAN: Thank your, Mr Tyson. Subject to what happens, Mr Coonan, that seems a fair way forward.
MR COONAN: I will keep a weather eye myself on how we are progressing tomorrow and the matter generally and we can take stock at the end of the period that you wish to sit for tomorrow. As to that, I am entirely in your hands. I obviously do not want to feel under any pressure and nor should you.
THE CHAIRMAN: Thank you. At least we have the benefit of reasonable time still on our hands, with the wise decision that was taken not to vacate the fifth week at this stage.
(The Panel adjourned until Tuesday 20 November 2007 at 10.00 am)
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