GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Tuesday 20 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-THREE)
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 everyone. The Panel is now ready to proceed, Mr Coonan, when you are ready.
MR COONAN: Thank you. When we broke of yesterday, I was dealing with the case of Child D. I was just about to deal with head 11(b) in that context. Perhaps it is just timely to remind ourselves again of that crucial wording in 11(b), which is the issue of inaccessibility:
“…others involved in the medical care of the child at that time or in the future.”
By way of introduction if I could set the scene, this comment applies to each of these three children, in terms of the question of accessibility or not; that you are not, are you, concerned with any established lack of corporate knowledge or lack of knowledge at Chief Executive level, if, if that be established. The issue here is precisely here as it is said in the heads of charge.
With that in mind, the next observation to make is that – and it is again something that applies to the other two cases – you have heard no evidence from any clinician, nurse, specialist nurse, the medical records department or any other person involved in the management of records for the purposes of clinical care. The issue is, as it is for the other two children, whether or not any inference can be drawn at all from this body of material we are going to look at together, of lack of accessibility or knowledge on the part of the people who really do matter for these purposes, or is it just an inference that can be drawn that the people at the top may, may not have known?
One has to look carefully at the story of Mrs D in her attempts to seek disclosure of these records. Mr Tyson has put in the spread sheet at C21. You will have it at hand and you will be able to look at it in more detail when you retire. I am not going to take you slavishly through it. I will highlight some of the references that Mr Tyson has put in. It is not an agreed document because it has many, many comments of his which – and I will deal with this later – we do not accept. It is not an agreed document even though you have given it a C number. You will need bundle C2, tab 4(k).
I am adopting this approach in an attempt to make the spread sheet come alive and to try to focus on what are, we would say, the really relevant documents in this clip of material which sheds light on this issue that you have to resolve. Many of these documents are of course not themselves particularly relevant to the point in issue.
Madam, the story begins, if one looks at page 1 of the clip, on 13 October 1997, when Mrs D writes to Mr Blythin. He was at the Trust. In fact it was to Mr Fillingham but Mr Blythin dealt with it by requesting Child D’s medical notes in October 1997. Mrs D told us that it was a Mr Blythin who sent her 18 pages of notes from the main file. There is no dispute about that. Those 18 pages are captured for us in tabs (g) and (h). If you count up the pages in tab (g) and tab (h) in this section, that is clearly what Mrs D is talking about. She is absolutely right, there are no SC files there.
Precisely why the SC file was not sent at that stage remains an open question. You have not heard from either Mr Fillingham or Mr Blythin. We do not know what steps were taken at – and I am going to use this, I hope, compendious expression which I hope is helpful – corporate level. Whatever the reason for non disclosure by the Trust at Stoke, at that stage it cannot sensibly, we would say, raise an inference that the clinicians, or any of those associated with the clinicians, would not, if they needed to, have been able to get access to the Special Cases files. It is such a speculative leap to make, to use the fact that the request did not produce any additional documents.
That is the first and perhaps the important point to make about Mrs D as the rest of the story will indicate. Mrs D realised, as she told you, from the body of the 18 pages, which you can look at in taps (g) and (h) that there was indeed a further file in existence with an SC number. The reference is in the spread sheet, and it is at Day 6/72B. She was correct. Just as an aside, you can see at once that, to her, she was able to see immediately the internal signposting within the main medical records.
What did she do? She did the sensible thing which is to write to the Chief Executive specifically requesting the Special Cases files. You see that on your page 2 of this clip. The Trust did not respond for some time. Note the emphasis “The Trust” not Dr Southall. They delayed. In January 1998 Mrs D, you may think perfectly understandably, wrote to the Trust. You will find this on page 11. She suggested that the reason for the delay was because the Trust did not know about the Special Cases file.
May I pause there. It is, you may think, not surprising that Mrs D expressed that opinion in her letter to the Trust. She had been given no reason thus far by the Trust why it had not given the Special Cases file. You may think it is a natural response to say, “Well, that is because you did not know”. Of course, that belief on her part, although entirely reasonable as a belief, does not establish the fact that they did not know, quite obviously. It now appears, as we will see from the correspondence, that the Trust’s stance in respect of this material was based on legal considerations. Very importantly, nobody has been called from the Trust, including Mr Fillingham and Mr Blythin, to say, in effect – in response to the letter setting out Mrs D’s belief – “Yes, Mrs D was absolutely right, we did not know about the SC files at all”. There has been a deafening silence. It would have been the easiest thing in the world, you may think, for the other side of the room to have called somebody, anybody, to say, “Absolutely, we did not know”. In February 1998, on 3 February 1998 – and if you turn to page 12 you will see the significance of this – Mr Fillingham, Chief Executive, writes to Mrs D to say that the Trust is taking legal advice.
Pausing for one minute. This is the first response of the Trust, in February, since Mrs D had written specifically to the Chief Executive, not to Dr Southall, in November. We are talking nearly three months delay. Mr Fillingham’s response is, “We are taking legal advice and we are taking legal advice from the Lewington Partnership”. Lewington partnership, and I think I can uncontentiously comment, at that time were a very well known firm of solicitors who dealt with Health Trusts, particularly in the Midland area.
The question put for legal advice was whether this material should be disclosed. He sets that out on this document. We have only been given a redacted version of the letter, but no matter, even on the basis of that redacted version, that is clearly what the Trust is considering.
Some two months go by and on 30 March 1998, page 16 of the clip, and it will possibly bear scrutiny particularly in the second paragraph, Mr Fillingham writes and refuses to disclose the material in documentation from agencies such as Social Services – leave that aside for a minute – Great Ormond Street and East Berkshire Health authority:
“The Trust is unable to disclose those documents as they are confidential and do not form part of [Child D’s] records.”
So, we have here, following legal advice – and let us leave aside for the minute whether that was good or bad legal advice – the Trust’s view, which was, “You cannot see them”. The reason is because they are confidential and did not form part of the child’s medical record. A number of observations may flow from this. There can be no doubt that from at least February 1998, even on his case, the Trust have known, even at Chief Executive level about the existence of Special Cases files.
It is an interesting point since, as we now know and I will demonstrate, Mrs D did not get these notes until 2003.
MR TYSON: She got some documents from the SC files as a result of this letter. It says so in terms.
MR COONAN: I would be grateful if my learned friend did not interrupt my speech, but I will deal with this in a moment. The SC file as a file was not handed over to her until 2003 and the basis of that refusal, it would appear, has its origins in the legal advice which the Trust took in 1998. The advice which appears to have been given – and it is not for me to invite you to take a view as to whether it was right or wrong, but clearly it was advice. It certainly does not accord with Professor David’s analysis of the position and nor does it accord with Dr Southall’s position in front of this Panel. Dr Southall’s position in front of this Panel is exactly the same as Professor David’s.
Looking at the letter there is an indication of some documents which would appear or may appear from the letter to come from the Special Cases file, and we have some evidence to that effect from Mrs D. Quite on what basis Mr Fillingham et al at the Trust were making a distinction, and so on, is at best speculative. All one can do is to look and infer that it must have been as a result of that legal advice. The legal advice clearly was sought by the Trust and given to the Trust.
Mrs D – and we are with her on this – was clearly not satisfied. You can imagine why. I think I can deal with this in a compendious way and you can look at the spreadsheet and make your own judgement. What it amounts to is that she made various complaints to the Trust about their handling of this issue and also made a complaint to the Ombudsman about this issue. The Ombudsman declined jurisdiction; that is a matter of fact.
I should just invite you please, when you look at the correspondence that I have suggested can be rolled up compendiously at this part of the case, just to enter a caveat, because if you look at some of the later correspondence in C2(k), it contains references in the correspondence to what Mrs D says third parties have told her as to the underlying reason or reasons why the documents are not being disclosed, and as to reasons about their status. In one particular letter you will see that there is an assertion she makes that somebody at the Trust had told her that it cannot be disclosed because they were Dr Southall’s personal property. Dr Southall has never claimed that; there is no evidence that he claimed that. In any event, none of these third party witnesses have been called before you. It is not Dr Southall’s property to own.
All these references that I am now dealing with should, in my respectful submission, be put to one side. Mr Tyson has included them in the spreadsheet. At best that is unhelpful, at worst positively misleading. What you have to deal with is the question of whether this correspondence and the fact of non-disclosure helps you in any way to establish whether or not charge 11(b) is proved. I reiterate that Mrs D’s belief, on whatever basis she may have expressed the belief, does not equivocate to fact.
On 29 March 1999, at your page 26 of tab k, Mr Blythin wrote to Mrs D and repeated what I call the “Fillingham Line”, that the Special Cases files’ correspondence was not disclosable. What he says is:
“I confirm that there is no additional documentation other than that which was sent to you on 30th March 1998. There is, however, copy documentation from agencies such as Slough Social Services, East Berkshire Community Health and Southampton General Hospital which the Trust is unable to disclose.”
That, in effect, is a repetition, is it not, of what I call the “Fillingham Line.” That letter, you heard from Dr Southall, was not on his instructions (Day 11/25E) and again represents the stance taken by the Trust. Indeed, the stance taken by the Trust, as we now know, following legal advice, does have a resonance with Dr Southall’s own position at that time. If you now just turn, please, to bundle C2, tab 6(b), you will see that Dr Southall there, in actually giving Mrs Dawson the actual special case file, sets out his view. That view, as you can see in the last two and a bit lines, is not dissimilar, is it, to the distillation of the advice that the Lewington Partnership must have given to the Trust. That, of course, is not the position that Dr Southall adopts before this Panel, but it clearly was a view he had then in 1999 and it would appear that that view that he had in 1999 was finding support from the Trust solicitors also.
As I say, it may not have been the correct “advice”, it may not have been the correct view or analysis, but it appears to have had a proper, a sound, basis. As we will see when we look at Child H – and you want just to put a little marker here – a very similar view was taken, would you believe it, by Field Fisher Waterhouse when they were acting for Great Ormond Street in 1994. We will come on to that in a minute.
Eventually, and again I can, as it were, compress this part of the correspondence, after the inquiry which we know took place in Stoke in 1999/2000, Mrs D got hold of the entirety of the Special Cases file, as I have already said, from the Trust in 2003. Why the Trust should take that view and not give it to her until 2003 is a matter for the Trust, not for Dr Southall. If you require to know why, as it would be entirely natural, I suggest, for you to want to know why, you are entitled, perhaps, to expect an explanation from the other side of the room for that delay rather than simply appearingly to lay it at Dr Southall’s door, because it simply does not stick. Indeed, it is probably because of all that that Mr Tyson in his closing speech to you was driven to concede that it was not suggested that Dr Southall had what he called a personal role, but that the spreadsheet shows that the Trust did not know of the existence of the Special Cases file until 1998.
I have already dealt with that and, with great respect, the spreadsheet does not show that at all. What you have to do, please, is not look at the spreadsheet, look at the evidence, and the evidence does not support that unless – unless – you take a speculative quantum leap.
In closing in respect of this I make the observation I made right at the beginning, which was that it is not the corporate chief executive’s lack of knowledge, if there be any – if there be any – that is important, but the state of knowledge of the people at the coal face that does matter.
Therefore, can I come to head 12. I am going to make only global observations in respect of head 12, because much of the sub-divisions of head 12 are essentially value judgements for you to make. It ultimately depends, does it not, upon the view that you take, madam, of head 11, in respect of which you have received my submissions. In any event I add simply the following. The risk or chance (probably best put as the chance) of re-treatment at Stoke for this Stoke-referred child, Child D, was, in our submission, extremely remote. He lived, as you know, some 100 miles away, and the M6 car accident scenario which was floated, a perfectly possible intellectual exercise, but as an example, testing that, in our submission, is somewhat far fetched when one considers two things. First of all, the reason for the application of the policy in the first place in relation to this child, and, secondly, when set against the content of the correspondence in appendix 1. You also know now that the reasoning, in part, for the setting up and application of that policy has received, as you can now see from the documents – and we come to it late in the day – some degree of apparent support from the Trust solicitors, what I would call, in compendious terms, the “Lewington advice.” That is all I seek to say about head 12.
I am now going to turn to child H. First of all, just to set the scene, there are three categories of document here which you will divine from your Appendix 1. One is a single clinical data form and that is listed in your Appendix 1. It is in the Special Cases file at pages 25-31 and is conveniently photocopied in the bundle C9 which Mr Tyson put in, which is a helpful bundle because it gathers together all the documents in Appendix 1 together. Secondly, a single Samuels’ manuscript note, which is the Special Cases file page 20 and again it is in your C9. When we look at that could I just flag up in advance, could I be confident, please, that every member of the Panel when looking at this document, Special Cases file page 20, does have a photocopy with the bottom line on, which was missed off when first received by the Panel. We had to have the entry written in. It is a crucial entry and I will come to it when I deal with the document. Thirdly, assorted correspondence. You are dealing here with five letters. That is what you have to deal with. Therefore, I have to take each in turn, and can I start with the collection of clinical date form C9, page 25-31?
The first question to address perhaps is the purpose of the form. That document, you were told by Dr Southall, was created to assist with the interpretation of recordings and, as a consequence, to assist with clinical audit. If you want to take a moment to look at C9 at pages 25 to 31, it is at the back – because again, the numbering does not follow in sequence – about ten pages in from the back, beginning at page 25. As I say, Dr Southall told you the purpose of the form and he told you that at Day 10/39G-40A. This document is in fact only in the Special Cases file; there is no doubt about that. There is some data in this – and I stress some – which is not in the main file, wherever you look in the main file.
Dr Southall accepted when he was asked about this that the following clinician looking at this document would have found it helpful to have had the totality of the information in it. He said that to you at Day 13/37A-H. The position is that the data in this document compared with the data in the main file which you have is very small indeed. In other respects you will hear me use the words “de minimis” and it is perhaps an appropriate description here too. I have to accept, as Dr Southall does, that there clearly is an argument nonetheless, if one wants to be strict and purist about it, for it going in the main file. With that, that is all I am going to say about this document. I am not going to make any separate submissions on a per head basis about it, simply because I anticipate that your consideration of the five letters in the correspondence category will be determinative in any event. This document, we respectfully suggest, does not add or detract at all from the underlying issue which you have to address which relates to the correspondence.
Madam, I come straight on to the next document for consideration, about which there is a little more to say, which is the manuscript clinical entry at page 20 of the Special Case file. In C9, again grappling with the pagination, it is nearer the back, so when you come to page 31 in the document we have just been dealing with, it is the next document and it should have page 20 at the bottom.
THE CHAIRMAN: Mr Coonan, you mentioned a moment ago whether the Panel actually has photocopies which include the last line. Certainly in my file, the wording of the last line has been inserted in manuscript. I am not aware of the Panel having actual photocopies which include the last line.
MR COONAN: I was not sure either way, but really, if I can put it in this way, provided the Panel have put in in manuscript what the bottom line is, then I am entirely content. Madam, since you have raised it in that form, the last line should read “neuro opinion/local paediatrician”. It is agreed that it is a note by Dr Samuel. The other side say that this is an original medical note and so therefore there is primarily an issue as to whether it is or is not. That assertion that it is an original medical note is primarily based, it would appear, on Professor David’s view that it was.
I just mention this in passing. Professor David and, for that matter, Dr Southall, have not seen the actual document in the notes. What they have seen is what you have: the photocopy. Dr Southall saw it at the beginning of the hearing for the first time since 1990 at Day 15/30D. I do not know whether the original document is still with us. If not, I hope it may be obtainable. It should still be here. It is in the custody of Field Fisher Waterhouse. I would invite you – I do not want to interrupt the flow now – to look at that document when you retire. You will remember that it is a note which is not written on hospital continuation paper. It is written on just a bit of paper.
The issue therefore which is raised is: what was this document really all about? The other side seek to say that it is a medical record, an original medical record, and all we are doing is simply saying, ‘Well, if you say that, you really have to prove it.’ We have flagged up a number of factors which I will deal with which really cause difficulties in establishing to the requisite level of proof that it is an original medical record. Since ultimately it is a burden and standard of proof point, the bottom line is – and I am sorry to have to keep chastising the other side – that if they want to prove this is an original note, then call the maker of it. That is all they have to do. It may be there is a perfectly understandable reason why the maker is not called. This is 17 years ago. I invite you please to ponder that when one is considering the purpose for which a document is generated, to ask somebody to put their minds back to the particular facts at the particular time. If it may be a problem for the maker, it is certainly a problem for Dr Southall. All he is saying is – and I will take you to the reference – that it seemed to him that it probably was an aide memoire. You will see that suggestion at Day 13/40A.
The issue therefore I think properly formulated forensically for you is: is it an aide memoire or – and this is equally valid – may it be an aide memoire? If you come to the conclusion that it may be an aide memoire, then the assertion made by the other side fails. That is all I need to raise.
What are the factors which support that rhetorical question: may it be an aide memoire? First of all, it is undated. Signing a document, and you can see Dr Samuels’ initials in the bottom right-hand corner, you may think is not indicative either way as to whether it is an aide memoire or a medical note. In considering the question of dating it and the absence of it, you heard from Dr Southall that Dr Samuels was indeed meticulous and that he would have dated it if it was intended to be a medical record. That description of Dr Samuels by Dr Southall was at Day 16/24G.
A further factor which in our submission supports the notion that it may be an aide memoire is the fact that it mirrors the Dinwiddie letter sent to Great Ormond Street about which, in another context, there was an issue as to whether it was sent to Gwent. I am calling it the Dinwiddie letter. The Dinwiddie letter, you know is at C2/1. I am not going to take time now, but a simple exercise of comparison between the content of this manuscript note and the letter itself will demonstrate the four-squareness of the two. The one factor which argues in favour of it being a medical note is the fact that it contains a reference to the parental view halfway down. It is right – and I fully accept – that there is no note of the medical notes in the main file or in even the Cardex which captures any conversation between Dr Samuels and the parents. That in our submission is the only factor which points to this being a medical note as opposed to an aide memoire.
Ultimately the question which you are being asked to deal with in 2007 is the purpose for which this note was created in 1990, as I say, 17 years ago. If you have a situation where you have an argument – argument in the singular – in favour and arguments, factors, against, it is extremely difficult, is it not, to come to a conclusion so that you are sure that this is a medical note as opposed to anything else. Those are the submissions in relation to that document.
I come on to the clinical correspondence. There is one letter in your appendix 1 which is page 114, which is the Dr Matees’ letter, which is the penultimate one in the bundle, which Dr Southall told you in the course of his evidence (Day 10/42B-C). The other four letters in C9 which are again in your appendix 1, is helpful. At any rate, what of the substance? Dr Southall admits that that letter should have been in the main file and he admitted that at Day 10/42B-C. The other four letters in C9, which again are in your appendix 1, he maintains were placed in the Special Cases file in pursuance of his overall policy. I have dealt with the matters which underpin the existence and operation of that global policy and I do not propose to repeat them now. They apply as equally to Child D as they apply here, because those are the two cases, H and D, where you have to look at the status and purpose and merits of having clinical correspondence in the Special Cases file only. So what I say hereafter are submissions which really follow what I anticipate would be the determining view of the Panel in relation to the clinical correspondence, but you might have to make – in fact, you will have to make – separate decisions in effect in relation to the patient data form which I have already submitted on and also the manuscript note.
Therefore I come straight away to head 10(a). There is no issue about this so far as the correspondence is concerned, but there is an issue about the manuscript note. There is no issue about 10(b) save in respect of the manuscript note. So far as head 11(a) is concerned, again you have received from me submissions about the question of integrity to the effect that the mere fact that there is a separate file containing documentation per se does not damage integrity, and I repeat that and adopt it here.
The ultimate issue under the issue of integrity is, as I have again said earlier, is to consider the existence or otherwise of the triad of internal signposting, knowledge and accessibility. You have my submissions on internal signposting, you have my submissions on the question of knowledge, this being first of all a Brompton child and then subsequently the records are at Stoke, which therefore brings me to the question of accessibility, 11(b). I make no apology for addressing this issue and drawing attention once again in this context to the crucial words in head 11(b). Once again, in addressing this question, you no doubt, madam, will take into account the fact that once again no evidence has been called from any clinician, any nurse specialist, any records manager or the like to deal with this question of accessibility or not. Ultimately what you are being asked to grapple with and to draw inferences from are the attempts made by Mrs H through the auspices of Mr Chapman to obtain disclosure of her notes. This is the last of the three exercises which, as I say, you have to grapple with.
The background starting point, to give you the basic references, are first of all the spreadsheet Mr Tyson put in, which is C22, and there are particular references from Mr Chapman which you may find helpful. Can I just give you four of them? Day 7/62A-67, Day 8/1-2, Day 8/16-23 and Day 8/21B-28A. In effect, what you will need, without overburdening you with the detail of documents, is to inform your consideration bundle C2 at 2K and 2L.
Madam, I am going to start on this exercise. I am entirely in your hands. If you wish to take a break now, I am more than happy. This exercise may take 15 or 20 minutes, maybe a little longer.
THE CHAIRMAN: I will consult with the Panel. (After a pause) The Panel are content to continue. Let us plough on for now and we will take a break when you have completed this section.
MR COONAN: Thank you, madam. Madam, we are looking again, the third of these three cases, at this exercise in obtaining notes under a medico-legal umbrella. The story starts in November 1991 with a firm of solicitors called Cartwright Adams & Black, who requested the medical records. That is at C2, 2(k) page 1.
This request for medical records was not in respect of the medical care of the child but in the context of wardship proceedings. You may remember, to square the circle as it were, that those wardship proceedings came about as a result of case conferences which were attended by Dr Dinwiddie and Dr Southall. You will see references to that in your medical records which you have. I am not going to take you to them now. It is a point of reference and gives background leading up to the commencement of the wardship proceedings. The important point for my purposes is that the request was made for medico legal purposes.
Dr Southall, in 1991, was still at the Brompton. If you look at C2, tab 2 (k) at page 1, you will see the request. On page 3 you will see that the Unit General Manager asked Dr Southall, requesting consent to copy and disclose. On 6 November, Dr Southall writes “consent given”. In passing, you will note at the top of the letter, in writing, which is not Dr Southall’s, reference to the Special Cases file, “SC 2026”, in the top right hand corner.
It is absolutely right and proper that I should not seek to exaggerate any of this bearing in mind, and in particular bearing in mind, the fact that we are dealing with matters way back in 1991. Dr Southall was asked about that note that he made on that document. I will ask you to turn up a reference in the transcript, which is at Day 14/9. It is one of the very few references I will ask you to look at. If you have in mind, therefore, the page 3 we have been looking at and drop down the page to letter F which introduces this precise page we have been looking at, I pick it up at between G and H:
“As he has asked for you for disclosure of the child’s medical records, that would only involve, would it not, the medical records held by the hospital on their main files?
A Yes.
Q You are not thereby giving consent to disclosure of the SC file?”
Answer, and, Madam, note this:
“I cannot remember, but there is something odd about this letter, but may be it has been added later, the SC number is on the top in handwriting, it is not my handwriting, I do not know what it means or why it is there.”
Bear in mind that Mr Tyson asking this question in 2007, asked her what Dr Southall’s state of mind was in 1991. Over the page Mr Tyson presses it because he has not got the answer he wants:
“Would you accept as a simple proposition that you have been asked to give consent to disclosure of the medical records, and that the consent given would be for the medical records held by the hospital in the medical records department.
A Probably, yes, probably.”
Then the line stops. I draw attention to that for a particularly important purpose. It does, in my respectful submission, illustrate the futility of asking somebody, seventeen years down the line, as to what they were addressing in their minds at the time of a letter sent. I do not hesitate from using that word, I do not want to be accused of being over florid in this, but sometimes a word chosen like that really does sum it up.
Yesterday, when I was addressing you in terms of preliminary, I adverted to problems of lapse of time and one of them I adverted to was the difficulty of addressing one’s own reasoning many, many years down the line. The high point of our evidence relating to the fact of non disclosure of the Special Cases file back in 1991 for Mrs H is precisely that passage. It is the case, and there is absolutely no doubt about it, that the Trust did in fact only disclose the main file in those proceedings. As you know, Professor David himself was involved in those proceedings as an expert. He told you that it came about, therefore, that he only received the main file, so now you can see the route which led to that.
I make two observations about this. Forgive me for repeating it, but the artificiality of seeking to demonstrate that Dr Southall was, in effect, responsible for leading to this file, the Special Cases file, being inaccessible even in a medico legal sense, is speculative. In any event it was only in a medico legal setting. Even more curious is the fact that in the main notes, if one looks you will see the internal sign posting. You can see that because during the course of the evidence we carried out a little exercise which is in your D13. It is a little clip of material, but I will not take you to the detail, it is simply for your note. The exercise there was based upon a number of documents culled from the main medical file. The fact is that – it is not a criticism of anybody – nobody at that stage, it was different later on, thought to themselves, “I wonder what this means?” It would appear nor did Professor David. Nobody thought, “What is this a reference to, I had better ask the solicitors or ask the Trust for the SC reference or the SC file”. As a matter of pure fact the SC file did not emerge in the wardship proceedings.
Between 1991 and 1994, which is the next period for scrutiny, no steps were taken by Mrs H, or on her behalf, to seek any notes after the wardship proceedings were finished. Things changed in 1994. A firm of solicitors, now a different firm called Huttons, came on the scene. They were instructed by Mrs H to commence proceedings in clinical negligence against numerous named defendants. One of them was the Brompton Hospital Trust, one of them was Dr Southall personally, one of them was the Great Ormond Street Hospital Trust. It is not clear whether Dr Dinwiddie was cited personally or not but I do not think it matters one way or the other for present purposes. By now, in November 1994, Dr Southall was at Stoke. That sets the background for what was to follow.
On 1 July 1994, and you can see this at C2, tab 2 (l), page 11, Mr Chapman, representing the management of the Brompton, asked Dr Southall in Stoke if he has a file at Stoke on Child H. If you would like to turn to that, tab (l) page 11, the end of the second paragraph; crucial request at the end of the second paragraph. This request, as you now know, was based by Mr Chapman on a number of factors. First, what Mr Chapman had been told by the relevant people at the Brompton, and I have given you a previous citation from Mr Chapman’s evidence to that effect. I remind you again it is Day 7/59. That request is also based upon what Mr Chapman had seen already, which is that he had seen a number of SC number references on other patients’ records, Day 8/21A H. I comment there that, again, it is emphasis, is it not, for the existence of prior knowledge at the Brompton by others. Mr Chapman is not the key test for knowledge here, the key test is the knowledge in others.
I also observe in passing that, if that be right, and principally from the previous citation I gave you at Day 7/59, it is a pity that that knowledge what was not tapped into in 1991 by Cartwright Adam & Black on page 1 of the clip. However, a perfectly proper request by Mr Chapman he knowing what he then knew.
Unfortunately, and there is no doubt about it that it was unfortunate, Dr Southall did not reply to that letter. The reason he did not reply was because he was in Bosnia, Day 10/44F 45D. He made it clear to the Panel that he accepted full responsibility for the fact that that correspondence was not picked up in his absence and responded to. In any event, and again it is not a criticism it is to state the fact, there was no chaser by Mr Chapman. So one had, simply, a request by July 1994. While Dr Southall is in Bosnia, of course, the Trust has to deal, through its solicitors, with the legal proceedings which had begun against it. We can see what their approach was.
If you look at D8, which I do invite reference to now, you remember the request was made to Dr Southall on 1 July and on 14 July the Trust solicitors, Norton Rose, are advising Mr Chapman of the position. I need not trouble you with the first paragraph. (Short pause for Panel member to find correct document). I take you in passing, so you can cast your eye on the second paragraph, as to, in effect, what was required in order for this claim to have any basis at all. The second page is what is relevant:
“I have spoken to Field Fisher Waterhouse [acting for Great Ormond Street as a cited defendant in this action] regarding disclosure of their documents in the [H] case. They have decided that they will give voluntary disclosure but only in relation to documents which stemmed from Great Ormond Street. They have copies of documents from other parties but have decided not to disclose those. I think this is a sensible course of action and I would suggest that we do the same. I have now checked the Hospital’s notes and the last letter on file is dated 24 September 1991.”
The last paragraph:
“You said that you would be writing to Dr Southall to check whether he had copies of medical records if, in fact, the Hospital does not have them.”
In fact we know that Mr Chapman had already done that on 1 July. That was a record of a stance taken by Great Ormond Street which the Trust, Brompton, was also going to adopt. The notes in question at all material times are not Dr Southall’s notes, any of them, they all belong to the Trust. They are taking a view, and the basis of it remains to be seen, but they are taking a view that they are simply not going to disclose them. If it is sought to derive any evidence of value from that position by the Trust to the effect that the Trust or those people in the Trust that need to know did not know, then our submission is that that attempt is doomed to failure. We also know what Great Ormond Street’s stance actually was from a primary document, which is in the same file at D2.
I appreciate it is to Mid Glamorgan County Council, but the sentiments in the second paragraph are, nonetheless, germane:
“It is our intention to grant voluntary disclosure of Great Ormond Street Hospital records but to exclude documents which have been sent to the Hospital purely for information purposes. We would therefore indicate to Messrs Huttons, Solicitors for the [H family] that it would be necessary for them to contact either yourselves or the Social Services Department if they wish to obtain copies of such documents as the case conferences.”
As I say, the references to case conferences is a direct reference in context to the intended recipients of this letter, the County Council.
Taken as a whole, one can glean from this policy stance by the Trust in the context of medico legal proceedings, that there is the idea of correspondence from third parties to third parties, copied for information to the Trust, which would not be disclosed and material emanating from outside the Trust would not be disclosed but that only documents stemming from the Trust in question would be disclosed. At the time of these events – and it is matter that you have not had your attention drawn to thus far – if one then looks at Appendix 1 for Child H, those letters which we see there, letters to Dr Southall, five of them, all five are letters to Dr Southall.
The great difficulty about this exercise which has been mounted by the other side – and this applies to the other two cases we have looked at – is you have not been shown the internal paper trail. You have not been shown the notes of the telephone calls, if there were any. You have not been shown the attendance notes. What must have been going on in the Trusts, whichever Trust it was, you are completely in the dark about.
So it was that the action brought against these parties was addressed, no doubt, by the claimant, Mr and Mrs H and her solicitors, and so far as the potential defendants are concerned, they were waiting to see what happened. What did happen was that in September 1995 Mrs H discontinued the action. That means that any internal or associated request for documentation within the action lapsed as a matter of law, and you know it was discontinued and you see the reference at C2(l), page 18.
By 1995, if we can just stop for a minute, you have to be asking yourselves, do you not, “Are we sure that the evidence that has been placed before us, albeit in a medico-legal context, proves that the Trust in question did not know of the Special Cases files?” In considering the question of knowledge, “Are we sure that the people who needed to know from a medical care point of view did not know?”
THE CHAIRMAN: Mr Coonan, I was going to say it has in fact taken you half an hour. Have you got much further to go?
MR COONAN: I am content to take a break now because I am coming to the last stage of this exercise, but I am more than happy to break now.
THE CHAIRMAN: Thank you, I think we should break now. We will take a 20-minute break.
(The Panel adjourned for a short time)
THE CHAIRMAN: I think everyone is ready, Mr Coonan, if you are.
MR COONAN: Thank you very much.
Madam, we got to September 1995 in the unfolding account of attempts in a medico-legal setting to obtain clinical notes, including the SC files. I told you that the action was discontinued against all defendants.
The next four-and-a-half years approximately was a period in which no attempts at all were made to obtain documentation. The matter sprang to life again in March 2000 when Mrs H wrote to Mr Fillingham, chief executive at Stoke, to ask if there were any records for Child H, and she also asked, although it is of no direct relevance to this case, if there were any CVS (covert video surveillance) tapes at Stoke. That is to be found at C2(k) page 5.
The prompt for that letter, just by way of background, was that she had got to know from people at the Brompton about the existence of the Special Cases file, although, in addition, internal references within the main notes, including the report of the sleep studies that I have referred to yesterday, would have sign-posted her to that anyway. Interestingly, in this request at page 5 of your clip she asked Mr Fillingham not to let Dr Southall know of her request.
You know that around about that time there was an inquiry at Stoke and Dr Southall had for a time been suspended, and on the assumption that Mr Fillingham was as good as his word, having had that request that he did not raise it with Dr Southall, it does cut off a direct knowledge supply line. Mr Fillingham, again, has not been called to give evidence before you as to what steps he did take.
At any rate, Mrs H appears not to have got much joy from that, so on 1 March 2001 she wrote to North Staffordshire again, this time to a Ms Smith, about the existence of the Special Cases file. You will see that at page 11 of your (k) clip (C2(k), page 11). You will see that in the body of the letter there is the historical footprint which led to Mrs H’s knowledge about the existence of the Special Cases file. I just mention that in passing.
By this stage, March 2001, as I say, Mrs H had been given no explanation by
Mr Fillingham about this matter, so, as I say, she writes again.
On 26 March 2001, at page 13 of the clip, there is, we would suggest, a very instructive letter. Mrs Sidoli at North Staffordshire, who is, you will see, significantly the project director of the inquiry team, writes to say two things; that after an “extensive search” (and I ask you to put that into inverted commas, at least for the purpose of the argument) the Special Cases file 2026 had been found. Secondly, she says:
“Legally, we cannot disclose information which emanates from any other agency and you should contact them separately.”
She does provide information as it relates to the Trust and its employees and encloses relevant documents. It is not clear at that stage, in 200,1 what in earth is meant by “extensive search.” Where were they found? Who had had them? We know that an inquiry was going on which touched on the existence of Special Cases files. You have been told that. Who had she asked? Again, where is the paper trail? Again, if it is not presumptuous to raise this question, is it sought as a result of that letter to seek an inference that there was no accessibility, or would not have been by clinicians, if they had wanted access to the Special Cases files, purely because of the wording on that letter? Because, if that is an inference which is sought to be made, that would be a very dangerous inference to draw, we would submit.
I also draw attention to the second element of that letter, that once again this was a Trust position being adopted. The explanation for it is not set out there and it means, or may mean – and that is all I think I need flag up at this stage, bearing in mind the language of that letter – that the documents, the correspondence that is in your Appendix 1 which is all addressed to Dr Southall, may have been caught by that letter in any event.
The problem is that you have not been told anything about the Trust’s internal assessment or analysis or approach to these problems, and in the context of seeking to prove head 11(b) it applies to these three children. It is not, we would say, a useful or helpful exercise. That is, as I said to you yesterday, at best an artificial exercise.
Looking at matters there we would say, in relation to head 11(b), that that is not proved.
Before closing on Mrs H and head 11(b) I should just go slightly back in time to the position of Mr Chapman, because in 2002 Mrs H showed Mr Chapman a report. The report is the same document which you will find in the main record which was generated as a result of the sleep studies and then sent into the main file, so you get the internal signposting. On this occasion it worked, because Mrs H showed the report from the main file with the SC number on it to Mr Chapman. In effect – and you can see the actual precise terminology, but I am just summarising it for my purposes – when she showed it to him it is absolutely clear that Mr Chapman did not make the link with the existence of a Special Cases file. He did not. When he was asked about this, he said, well, it was a question of not understanding the categorisation (Day 8/21D to G).
The reason for me addressing this is simply to dismiss it, because we would submit it absolutely sheds no light on the issue that you are dealing with. Mr Chapman was then being asked in 2002 and this is despite the fact – and again, this is not a criticism of Mr Chapman – that he had already been told by Dr Southall in 1995. I will give you the reference, and we have looked at it already in another context; C2(b), page 22, and it is an important letter. The first part of it begins:
“We always kept our own medical records for all the Special Cases …”
Secondly, despite the fact of Mr Chapman not making the link, as he had told you – and I have given you the reference already, Day 7/59, an important reference – they had been told at an earlier stage about the keeping of additional files and he knew that there were SC numbers on other records.
Again, it is not a criticism of Mr Chapman. If he did not make the link, he did not make the link, but it is difficult to see, is it not, how that failure to make a link, if indeed that is part of the other side’s case, is to be used to establish the proposition of inaccessibility to clinicians. Point made. That is all I say about this topic in relation to Child H.
It might just be timely, at the risk of some small repetition, to make a general comment about the evidence which has been laid before you in relation to A, H and D on this subject of accessibility. The exercise which I have engaged in in relation to all three children – and I make no apology for it – has been somewhat extensive, but I did it in order to bring to life the material which is on the spreadsheet. You need to pick out that which is forensically relevant to the issue which you have to grapple with and, when you do that, we would suggest, you will come to the conclusion that this is indeed an artificial device. It does not assist on the fundamental issue and, at the very most, demonstrates the difficulties which people have, patients have, seeking disclosure of notes in a medico-legal context at the time when there was a particular prevailing restrictive medico-legal culture. The culture was being operated here by the Trust in question. You must ask yourselves the question whether this material in any one or other of these cases in relation to this topic, head 11(b), has made you sure that this demonstrates the question of inaccessibility to those involved in medical care either in the present or in the future. We would invite you to the view that when you rigorously examine it, it does not pass that test.
Therefore, can I come finally to head 11 in relation to Child H? Madam, I make in effect the same submissions as I did in relation to Child A, because they are both Brompton children originally. I add in global terms just the following observations.
The policy which meant that the four or five letters in the correspondence in appendix 1 – I say four or five for the reasons I gave earlier – was a policy which was set up from the best of motives. Secondly, you have to judge the implementation of that policy as of the time it was done, not in today’s terms. You have to consider whether the chance of requiring Special Cases files, these Special Cases files, for treatment at the Brompton was more than highly remote and the risk at Stoke was more than highly remote, bearing in mind at Brompton the department had closed down and, as I said in another context, the M6 accident scenario is fanciful.
So far as head 14 is concerned, again, I make the same observations that I made in relation to Child A. Very quickly, I have dealt with the question of consent in terms of transfer, I have dealt with the absence in evidence of any policy on transfer emanating from the Brompton and again, you must make a judgment as far as you are able as of the time, in other words, 1992, rather than today.
Madam, that is all I say about heads 12 and 14. The key to those, the determination of those heads, really lies in the broad submissions I made earlier and it is for you to apply those in whichever way you think appropriate. I think I would be trespassing unduly if I pressed any particular point. I think you have them already.
Therefore, with something of a moment of relief, I have completed the Special Cases files and I want now to turn to the question of computers. Before looking at the specifics of what is appendix 2, you will have at one side of you bundle C10, the helpful slim bundle which informs your approach. Before looking at the detail, could I summarise, I hope again fairly, the evidence which bears on the background to this issue? Let us take the Brompton first.
A computer was bought with charitable donations and was installed in the department at the Brompton. However, it was hospital property by definition. The fact that it was bought with charitable donations is neither here nor there. It was a free-standing computer, it was a Macintosh and it was passworded for security reasons. As Dr Southall told you, both he and Dr Samuels, who was then a member of the department, had knowledge of the computer and also access to it, as did the nurse specialist, as did administrators and as did the IT department, who maintained the computer. At that time – this is prior to 1992 – one has to take oneself back, I would suggest, to the way the computer age was beginning to develop and certainly at the Brompton at that time they were beginning to construct general databases to assist in the management of patients and also as a basis for being better able to perform clinical audit. There were two data bases. One was called the recordings database. This database was for the purposes of sending out information to GPs following recordings in the sleep studies and for the purposes of placing in the main file. It was in effect a discharge summary. In this context, I refer you again to the Jawad letter of 14 December 1990 at C3/7©(i). That in a nutshell was the purpose of the recordings database.
The second database was what was called a patient data database. The purpose of that was to store basic information in order to be able to flag up a patient very quickly for identification purposes. As I say again in this context, the beginnings of the computer age, being able to do that quickly. It is in that context that the clinical audit element purpose is relevant, in order that key words and key conditions can be searched for very quickly indeed. Dr Southall explained all this at Day 10/13F-15D. The method – and this is a matter which impinges on the question of knowledge and the question of the use of the term “secret” – what happened was that the nurse inputted the information into the computer after admission and she or he did that from the referral letter or from the clerking note made by the house officer. She inputted the information in summary form using on occasion her own form of words. That is as Dr Southall explained it.
That was the system set up and run at Brompton. I make one observation about it. As a matter of principle, that was perfectly acceptable. The second element in the unfolding story was the transfer to Stoke and you know, madam, that the computer, the Macintosh computer at Brompton, was taken to Stoke. It went with the Special Cases files and again, Dr Southall – I gave you the references yesterday – told you that that, together with other equipment too, all of it went to Stoke. He explained that the computer itself had a use for clinical audit purposes. As a general submission which I make here – and we will see how it unfolds in a few minutes – at the point of transfer, there was no extra information of any meaningful input on the computer database in relation to these children beyond that which was in the main notes. So the idea – and let us, if we may, deal with it straightaway – that a computer is going up to Stoke on the back of a lorry, stuffed to the gunnels with clinical information which is not in the main notes is simply wrong and unfounded.
That Stoke Macintosh was for a time again a freestanding computer and at some stage – the date probably does not matter – the data from the Brompton Macintosh was transferred to a Windows operating system computer at Stoke. The fact of transfer – my learned friend made it clear no point was taken about that. At any rate, the data went on to a newer, more efficient modern computer at Stoke in the academic department. That computer was freestanding and it was passworded. It was passworded for two separate databases. You may think, well, there is nothing in particular in that; it is right and proper that it should be passworded.
Dr Southall told you that those who had access to the computer were himself and Dr Samuel, the nurse specialist and the IT Department. He told you that on Day 15/33A. We know that in 1999, because of the inquiry and Dr Southall’s suspension, the IT Department changed the password. When he came back to work he could not get into the computer and they had to give him another two passwords. I mention that simply to demonstrate the point which immediately, as it were, demonstrates that others had direct access to the computer.
The Stoke computer operated exactly the same two databases that had been operating at the Brompton. In 1993, shortly after the move to Stoke, there is a letter which was put in only the other day. Perhaps I could remind you of it. It is in the D bundle, document D22. (Pause for Panel member to find document). You will remember, by way of background, that on Day 16/14E, Mr McFarlane raised some questions with Dr Southall about data protection. The question was directed to whether or not there was a data protection officer in the department and Dr Southall did not know.
Over the succeeding twelve months, this document came to light and that is why it has been placed before you. It is clearly not in intended to deal with the breadth of the question raised by Mr McFarlane, but what it is there to show is – and I accept it has its limitation, but nonetheless in the context with which you are concerned, the question of whether or not one is dealing with a secret database – here you have, in 1993, Dr Southall writing to the business manager, in effect, raising the question, which they appear to have been doing for some months now, “The registration of data on our computers for the purposes of the Data Protection Act”. That is as far as one can take it, but the idea of secrecy seems to us – and it is a submission I make – that on the basis of this document alone, to be a nonsense.
Madam, the question of background and the general approach to the computers was summarised – and I will give you some references – by Dr Southall and, in particular, a series of questions by yourself on this topic: in chief, Day 11/35D 38F; by the Panel Day 16/14A 18A; and Day 16/24A D. May I urge you at your convenience to read those passages which will shed more light than I have sought to summarise on this whole topic.
I turn straight away to the elements in appendix 2. I start with the recordings database. In the recordings database there are only two children involved, Child B at page 13 of C10 and Child H at pages 3 and 4 of C10. It may be as well to have C10 to hand. Page 13, again the link with appendix 2, that is printed off the database, the recordings database.
I can deal with this very quickly because it was demonstrated during the course of the evidence that this document is in fact in the main file. Mr Tyson, quite rightly, has conceded that point in his closing speech to you. Just in case you need the reference, and I will be corrected if I am wrong, it is C2, tab 5©(iii). We can leave that and pass on.
The second child is Child H, for which purposes in this database it is pages 3 and 4. You can see straight away that they relate to the two admissions – the first one in September 1989 of which you had detail just towards the top of the page, and on page 4 the second admission on 16 March 1990. These were, by way of point of reference, pre Jawad letter admissions. They are before December 1990.
I accept, as did Dr Southall, that this document in that form, I stress that, is not in the main file, unlike the position in the previous child we have just looked at, Child B, but all the data in pages 3 and 4 is in the main file. The reference in the transcript, should you need it, is Day 13/49G. You may remember that a little exercise was carried out, which is encapsulated in document D15 which demonstrated the point. However your task is lightened because Mr Tyson agrees, in effect, that the data, the same data, is in the main file. The only issue is the form, and where does that take you in terms of any potential possible criticism that there may be? That is all there is to say about that first database.
The second database, the patient data form database, relates to all four children. Just in introductory form can I give you the references in C10. Child D, page 1; Child H, page 5; Child A, page 11; and Child B, page 12. In considering the evidence here and the heads of charge, remember their underlying purpose for the patient data form database.
Let us look at Child A. This document was printed off the computer and, as a document, as a print off, it does not appear in the main file. The short answer to that is, as Dr Southall explained and you can readily understand why he said it, it does not contain any data. If you look at the document you may think he is absolutely right and that it is completely irrelevant to the matters which you are considering. Dr Southall said that by looking at the date on it, which you can see in October 1990, he thought it may reflect – and again these are my words, but I am summarising what he said – the technical attempts that they were making to develop that particular database. This was, after all, a Brompton case. The reference is Day 13/51E. You may agree with him that there is nothing there from which you can divine anything meaningful at all.
That is Child A. Child D is at page 1. This print off from the database, it is agreed, is not available in that form in the main file, but the counter to that is, the only data in that print off which is not in the main record is the reference to the birth weight which you will see on the bottom left hand corner. The document itself, as a print off, is however in the Special Cases file in that form in C6 page 313. It is in the Special Cases but not in the main file, but all the data in it is in the main file except for the birth weight.
MR TYSON: I can slightly assist my learned friend on that. I think the birth weight is in fact in the main file if one looks hard enough.
MR COONAN: I have missed it and I am very grateful for being told.
MR TYSON: It is possibly in the Cardex at C2, tab 4(h) 616. I do not want to make a bad point.
MR COONAN: Can you give me the reference again?
MR TYSON: It is C2/4/h/616.
MR COONAN: Thank you very much. That is clearly a point which was not discovered during the course of the evidence at all. That does make your task so much easier.
My next point as an observation somewhat falls by the wayside in those circumstances, but I am going to make it because it goes to the question of system. It may apply to a couple of the others. As a matter of system, the admitting doctor should fill in the birth weight entry on the main record proforma. You have an example of the main record proforma which the Senior House Officer fills in at C2, 4(g) at page 601. I will not trouble you to turn it up. It is a fairly standard document which will have been seen by most Senior House Officers and the information should be there, but my learned friend in this case tells us that it is somewhere in the documents at that reference.
The only other observation that I make about page 1, because it applies in another context, is that the formatting of the database is not as accurate. I am referring to the formatting as opposed to the data, because Dr Southall told you that the reference to “diagnosis” in the bottom left hand corner should actually say “presenting complaint” not “diagnosis”. That does not affect the issue before you because you are having to deal with the question of whether or not there is data, not in the main notes, which is in these print offs in the database. That is all I am going to say about Child D in the light of what Mr Tyson said.
Child H, at page 5. This has the same formatting problem that I have just referred to – bottom left hand corner, as Dr Southall explained. Madam, page 5 is a single data form, which you can see in the bottom right hand corner refers to both the admissions which you know that this child had in 1989 and 1990. Dr Southall told you that the data within the document, the print off, derives from the main notes relating to the 1990 admission. The allegation originally made was that there was data in here which was not in the main file and I do not think there is any dispute about that. That was the matter put to Dr Southall in cross examination by my learned friend. The matter appeared to focus upon the third element on the bottom left hand corner, the reference to developmental delay. There was a bit of a search to see whether or not that reference could be found. At the end of the day we did find it and you can see it at C1, tab 2(d). That is an important reference, and that means that all the data in this document is in the main file, albeit, and I readily accept, that the print off itself in that form is not in the main file. Again, we would say it does not matter.
THE CHAIRMAN: Mr Coonan, did you say C1, tab 2(b)?
MR COONAN: No (d). It is on the first page of tab (d), it is about six lines down. That is all I say about Child D on that page.
I turn to the last one, which is Child B at page 12 of your C10. I start by saying that the print off in this form is not in the main file, so the underlying question, rightly posed, is, “Is the data in it in the main file?” The original allegation was that there was data in this print off stored in the machine which was not in the main file. My learned friend drew attention to two matters: first, the birth weight reference, which is somewhat obscured in the print towards the bottom left hand corner, and the reference to Bradycardia, under the “Diagnosis” section on the left hand side. You will see the reference and how that was explored by Mr Tyson at Day 13/57A.
Let me address both those points, if I may. First of all, as to bradycardia, the bradycardia reference was subsequently discovered in what has been called the Crawley clip at C17. Perhaps we could just turn it up. Just for ease of reference, it is the Crawley referral letter clip of correspondence. My pages are not numbered but it is a letter dated (blank) August 1993, addressed to Dr Hyatt from Dr Khine. In the clip we were given it is about the sixth page in. Just to help you, it has got post-it note which says “no” on top. This, you may remember, was material faxed to the hospital on, as you can see at the top, 2 September 1993. We have looked at this in a different context and you will see as part of that, in the second line of the letter, a reference there to recurrent bradycardia. That would have been material available to the nurse performing the inputting task.
Therefore, the point about bradycardia clearly falls, and in particular it falls, does it not, because there is an open question as to whether or not the whole of C17 ended up in the special cases file or in the main file. One of the matters you have to deal with in another context is precisely that question.
It follows that the only matter which appears to be a live issue, unless my learned friend is going to tell me that I have been wrong on this point as well, is the question of the birth weight.
MR TYSON: The birth weight is in the hospital files. I did a considerable amount of subsequent research into this. It is in the Cardex again and it is at C2©(ii) at page 33.
MR COONAN: I am very grateful.
MR TYSON: Both birth weights in the Cardexes that I have indicated are in pounds and ounces, albeit they have been transferred to grams in this case.
MR COONAN: I see. I am grateful. Again, that was a matter that did not appear on the transcript at an earlier stage and so obviously my learned friend has done further work. I am bound to say I had not discovered that in the wealth of documents. But, it is there, so we are told. Therefore, that means that in terms of data content there really is not an issue.
Where does that leave you in relation to Appendix 2 and the relevant heads of charge? In relation to head 15(a), of course, that is admitted and proved. In relation to head 15(b), as medical records in that form – and I think my learned friend addressed this question in his closing submissions – would be admitted save in respect of the one formatted document in relation to Child B, which is the document which we looked at earlier where it is agreed that it is in fact in the medical records, at page 13, and the counterpart is in the main records. So, save in respect of that, there is no issue between the parties in relation to head 15(b).
Head 15© is admitted and so, therefore, one has to address head 16. The exercise that we have just been engaged in, with some assistance from Mr Tyson, demonstrates that although the form is not there in the main file, the data is, if I could just deal with it in rounded terms. The data is. It seems, therefore, as if any allegation to the effect that those arrangements are not in the best interests of the individual children is difficult to sustain, if the data is there. Similarly, allegations in relation to the data being stored in that way as being inappropriate, and in particular that they amounted to an abuse of Dr Southall’s professional position, bearing in mind the purpose for which the databases were set up.
So, I deal simply with head 16(b). It would appear that the thrust of this allegation is that it is the mere fact that you have a computer database which it is alleged either nobody knew about or very few people knew about which forms, to use my learned friend’s expression, the gravamen of this allegation.
Let me deal with the question of knowledge first. As you have heard – and there is, we would submit, again no evidence to the contrary – the relevant clinical team knew, the nurses inputting the data knew, the IT department members knew, and we would submit that it is straining at the use of language to say that you can derive secrecy in this sense from the fact that you have a stand alone computer which is not networked to the main system, to which we would say, “So what?” Nor can you derive secrecy from the fact of a password or even from the fact that there is limited access, again to which we would say, and I make no apology, “So what?” Nor can one infer secrecy even in the sense suggested by my learned friend from the fact of attempts to get medical records, and I have been through with you the attempts in a medico-legal setting to get medical records. The mere fact that that did not lead to somebody pressing the button to get the print-off only says, does it not, that nobody pressed the button to get the print-offs. That is all it says. There is no evidence in terms of the question of secrecy, no evidence at all that the data stored on it was in breach of the Data Protection Act.
The only other matters to which we would draw your attention were that, as Dr Southall said, the same system that they were operating operates in the paediatric intensive care unit (Day 11/38D to E). Therefore, from whichever angle you make an assessment or apply an analysis, we would say that this is way, way, way beyond the mark. The underlying purpose of clinical audit of itself is a laudable aim and provided that there is no data of use to clinicians which is stored, squirreled away in a computer which either nobody knew about or could not get access to, then we say there is nothing in this allegation at all.
Madam, conveniently, and I note the time, that is all I wish to say about computers.
THE CHAIRMAN: Thank you, Mr Coonan. We will now take a lunch adjournment. It is very nearly 1 o’clock, so we will adjourn until 2 o’clock.
(Luncheon Adjournment)
THE CHAIRMAN: Good afternoon everyone. I think we are all present and correct and ready to begin now, Mr Coonan.
MR COONAN: Thank you, madam.
I am going to turn to deal with the case of Mrs D in relation to the corridor incident and just to recap some of the formal matters, you are considering heads 17(a), 17(b), 18(a), 18(b), 18© and Appendix 3. The other day Mr Tyson gave you a series of references from the evidence to assist you. Could I add, please, a reference which, in our submission, is very important, which relates to the evidence given by Dr Southall in re-examination at Day 15/37E to 39G. I invite you, please, when you retire, to read again as a whole the evidence of Mrs D and Dr Southall in relation to this incident.
I shall be taking you to a few references, but I do not want to be accused of taking out the plums and leaving the duff. It is important to look at the whole.
For my purposes I am going to make global submissions about these paragraphs on the basis that, if you are satisfied that it happened in the way described, then certain things follow in relation to the heads. That is why I am going to adopt a global approach to it.
That said, perhaps we could just stand back for a minute. This allegation is said to have occurred in December 1994 and merely considering that fact and the nature of the allegation may itself be sufficient to cause a certain amount of forensic unease. You are, in effect, being asked, as a task, to assess the content of, by all accounts, a very short conversation between two people in a corridor of a hospital when it is said (certainly now) there are no other witnesses, when as part of the allegation itself there is said to be, or inevitably said to be, a high degree of subjectivity.
Let me give you an example. Whether a gesture, if there was one, was in fact dismissive or interpreted as being dismissive; whether the tone of Dr Southall’s voice was raised. If it was, was it angry, or interpreted as being angry? Whether there was or was not any opportunity for Mrs D to ask questions, and then you have to ask yourselves what is meant here by “opportunity.” You are being asked to consider, are you not, to put it in very non-legal terms, to a certain extent the body language of Dr Southall some 13 years ago, to assess, if you like – and I hope I do not stray too far into journalistic description – the chemistry of what was going on between them in that corridor.
In assessing that incident, insofar as it existed, you have to consider the extent to which there is a risk on the part of Mrs M of exaggeration over time, and exaggeration can, of course, be non-deliberate.
THE CHAIRMAN: I think you said Mrs M.
MR COONAN: I am sorry, I meant Mrs D. The exaggeration may be non-deliberate over time. Exaggeration can, of course, be deliberate. I am not putting forward a case one way or the other, I am simply saying that you have to consider the extent to which exaggeration may or may not be a factor.
It is, we would suggest to you, when you grapple with this forensic issue, to consider that it is really so easy for someone to come along and say, so many years down the line, “It’s imprinted on my mind.” Do not be seduced by that. It raises questions, does it not, of when did it become imprinted on your mind; it raises questions of what is imprinted on your mind. As I say, it is easy to say and dangerous to take at face value as a sort of ace in the pack of cards.
A good starting point for considering this allegation may be Dr Southall’s own position. In the transcript reference that I gave you at Day 15,/37 to 39, Dr Southall explained how severely prejudiced he is in dealing with this allegation and it may be that you might find Day 15/37 just useful to open as I speak. (After a pause) I will pick it up at F:
“[Q] Towards the end of the questions by Mr Tyson you said:
“I cannot really challenge her account, it is difficult for me.”
….
[Q] Why, Dr Southall, is it difficult for you to deal with?
[A] Because, again, it is the same answer: thousands of patients have gone by in the meantime, and thousands of ward-rounds.”
Then there is a question about him getting to know of the complaint and I will pick that up later. At D on the next page, half-way into my question:
“ … was it a short time or a long time after the admission of this little child in December 1994 that you became aware of these allegations?
A A long time.
Q Although you, as one can understand, will have seen hundreds, if not thousands, of patients, tell us, how does that translate into you having difficulty in dealing with these matters?
A Well I cannot remember them.
Q Leaving aside the memory for the moment: is there anything that you might have been able to do if you had had earlier notice of these matters?
A If I had known immediately, say with Mrs D, if she had complained to the ward or to the trust there and then, or shortly afterwards, as you might have expected if there was something serious happening like that then I would have been able to deal with it because I would have been able to have talked to the people who had been on the ward, I would have been able to talk to the nurses who had been on the ward-round, I would remember who it was, I could talk to them and say to them, “Is this what happened?” or somebody could do the same thing but now it is impossible.”
Then over the page at page 39C:
“Can I just ask you this: whenever it was precisely, how do you feel that you are equipped to deal with this allegation?
A I am not equipped.”
You will remember that the evidence given by Mrs D was to the effect that Dr Southall was with some doctors or at least members of the medical staff and that perhaps is an observation worth linking to what Dr Southall is there saying. On any view – and for present purposes, the precise date does not matter, although I am going to invite you when you read the whole of the cross-examination of Mrs D and the answers on pages 37 to 39 given by Dr Southall to say that the overwhelming likelihood is that the first notice that he had of these allegations as expressly spelt out was in 2004. 2004. Ten years later. That in itself we would submit is enough to cause enormous unease. How is he able, consistent with a fair trial – and of course the concept of a fair trial is not limited to the fairness which a tribunal like this would bring; one takes that as read, but it is the other elements which enable a person to be able to defend himself which bears on the question of whether one has a fair trial. It is not just the tribunal. There are two matters, it seems to me, which emanate from Dr Southall’s position, but only two.
One is that in his evidence, when he was asked about this by Mr Tyson, he said, “Well, I would not have behaved like that.” That is what he said. How valuable is that? As his own counsel, one can say, “Well, he would say that, wouldn’t he?” What else does he have? He has perhaps your judgment of him when you saw him in the witness box when, as I have already mentioned in another setting, not once in seven days’ worth of evidence did he get irritated. This Panel I have no doubt will have seen doctors and other people in the witness box subject to close questioning getting irritated, but he did not. I know it is a long time ago, it is 12 months ago, but I am going to in effect call on your memory of Dr Southall – that is the least he can expect – and you will remember how he gave his evidence.
These observations I am making link in, do they not, with the theme which is running through most of these submissions, which is the operation of the burden and standard of proof; a classic operation of the principles in this case. I have already said it once and I make no apology for saying it again. There is not and cannot be any trade-off between any difficulty that Mrs D has in remembering some of the elements of this conversation – and she does – there can be no trade-off between that and the prejudice which Dr Southall suffers because of the lapse of time. If this matter is as you have heard it was from Mrs D, it is of course legitimate to pose the question: why not therefore complain about it earlier? I shall come on to that in a moment.
Before leaving the question of the burden and standard of proof, you will remember that you did not have evidence before you of the prejudice to Dr Southall before I made my half-time submissions. That came after. So a point which was made by my learned friend is swiftly dealt with. You now do have it and you have the material to avoid a miscarriage of justice because of the material which goes to the root of his ability to defend himself.
What of the history of the complaint here? Looking at the history of the complaint you may think is a method by which you can assess the quality of the complaint itself and the aspects of it. The first matter is one I have touched on already. Was a complaint made to anybody at the time? Mrs D agrees, no, it was not. Not to the nurses, not to the doctors, not to the Trust at that time. As far as we know, to nobody. We know that in 1997 and 1999 there was correspondence with the General Medical Council in which there was a complaint of one sort or another made, but it is accepted by Mrs D that she made no complaint about Dr Southall in relation to anything that happened in the corridor. Then in 1999/2000, she was a person who made a complaint to the Trust. In that complaint to the Trust, there was no complaint about what happened, if anything, in the corridor. We know all those facts from the cross-examination of Mrs D at Day 7/19C and 21C-D. What Mrs D does say of those complaints which were being made is, “I was complaining about Dr Southall causing harm to my son. They were more serious.” She was then in effect saying, “That is why I did not complaint about what happened in the corridor.”
We do not dispute that she was complaining about her view that Dr Southall was causing or had caused harm to her son. There is no doubt that she was complaining about that. But equally, the plain fact is that she did not complaint about anything happening in the corridor. It is easy to say now, 12 years later, that the reason she did not complain about matters relating to the corridor was because – and I summarise, I hope fairly – “I had more important things on my mind”, to which our reply is, “If you were complaining about Dr Southall’s conduct on the basis that he is causing harm to your son, why sanitise your account when you are making your complaint if you are attempting” – my phrase – “to throw the book at Dr Southall? Why is there no reference to this angry, intervention, dismissive, irritated approach to the mother of this child?” You may think that those two elements go together like a horse and carriage, but we know that her account is right, her account has been sanitised.
Then we come to what happened in July 2002. We are now eight years down the line and in that year Mrs D swore an affidavit, a statutory declaration, in July 2002. The content of that affidavit, which is relevant for your purposes, is set out at Day 7 – and this is an important reference – 17F-19C. Could I ask you, please, to turn that up? The transcript, if you pick it up at F, identifies the date of the statutory declaration and you see at G-H it sets out what is said on the first main page. There is a bit of background and I have already touched on the background in my submissions to you this afternoon. Then over the page, I will take you down to paragraph 97 of the statutory declaration at D. It says:
“Chris and I … ”
that is her partner –
“ … saw Professor Southall on the ward round on the morning of the 15th January 1995. Professor Southall was very abrupt and said that there was no such thing as ‘delayed allergic reactions.’ He said he wanted [Child H] to see an Allergist, namely a Professor Warner. He said everything was normal. [Child H] was not given a monitor and we were sent home thinking that everything was safe.”
THE CHAIRMAN: For the record, I think there is a mistake in the transcript and those “H”s should be “D”s.
MR COONAN: That is right, madam. Thank you. I did not spot that. There is another error, not in the transcript, but in her account in the statutory declaration after the date, which you can see is picked up in the next two tabulated references in the margin. That should be 15 December 1994 and not January 1995. You can see at F-G I make the observation that mistakes can be made about dates.
For present purposes, we will see too, to complete the sequence, that the date at the bottom of the last page (page 18) is 4 July 2002 and she agrees. So there you have for the first time – and she agrees this – you get any complaint about anything happening in a corridor. She describes Dr Southall as being “very abrupt”. It does not require a great deal to permit the observation to be made that this is really, really quite different from that which is encapsulated in the heads of charge which you have and, more particularly, in her evidence read as a whole. I am going to take you to a number of aspects of that in a moment.
The fact is that in 2002, whoever was assisting with this legal document, either did not ask or did not get an answer and the meaning of “very abrupt” is not spelt out. That is somewhat not only disappointing, you may think, but also an added element in the risk of prejudice to Dr Southall, because if it was the case that she was intending “very abrupt” to mean what she now describes, then Dr Southall would have been put on notice about this matter in 2002. What good it would have done him even then is an open question, but the fact is that only eight years down the line do we get the first flowerings of a complaint. Lest you think that I exaggerate about the meaning to be attached to the words “very abrupt”, all one has to do is to look at how she is putting this in her evidence to you at Day 6/68. Perhaps it is to that that we could turn. This is spread over 68 and 69. I am going to jump about, but it is for the purposes of this exercise I am jumping about. I do not intend you to ignore the other context, I am simply doing it for efficiency purposes. Picking it up at letter B, on the last line:
“Professor Southall became quite angry.”
Letter C on the second line:
“I just felt he was stopping me from asking any more questions by the tone and the anger in his voice. At the time I did not understand why he was so angry with me.”
At the third line just above G:
“I believe it was when I questioned Professor Southall that he became very angry... It was the anger that I just could not understand at the time.”
Two lines further down:
“It was quite loud, louder than he had been speaking, but it was more the anger I think.”
Over the page on page 39F:
“Because of the way it was said and the anger at the time.”
The theme running through this is, is it not, a picture of somebody who was angry, angry, angry and “feeling sick”, page 69D E.
If we leave Day 6 to one side and move to Day 7. At the top of Day 7/22A she was shown a copy of a witness statement she made in 2004, a witness statement given to Field Fisher Waterhouse, and in paragraph 16, and the quote is there set out:
“Throughout the latter part of the discussion I felt that Professor Southall was venting his hate towards me.”
This is a matter which ultimately will be a matter of impression for the Panel, but what has gone from no complaint at all for years and years and years has become, in 2002, a rather anodyne very abrupt, to 2004 venting his hate, and in evidence to you, anger, anger, anger. You have to decide, do you not, whether there is anything in that point. Professor Southall cannot help, he is not in a position to deal with it, so the only person who can is you. We say on his behalf that there is a point here, a forensic point, which does give rise and should give rise, quite properly, to unease.
It is no doubt the case that Mrs D may well have been anxious at the time on that day in the corridor and, indeed, she said she was. The reference for that – I do not ask you to turn it up now – is Day 7/11B C. It would be unreasonable and absurd if she was not anxious. Equally, she may well have been perplexed, if not more, by the fact that she could not understand – and she told you this – at the time why it was, when Dr Southall said that everything was normal, yet she knew that the alarms had been going off overnight. The reference for that is Day 7/12B C and Day 7/27B E. No doubt a corridor may well have not been the best place to have a conversation of this sort.
So much for how Mrs D may have approached things at that time from an emotional standpoint, but what about from Dr Southall’s standpoint in trying to reconstruct what may have happened? Of course, when I say “what may have happened” anything is possible. He may have been just as Mrs D says he was. That is not enough to prove it. He may have been irritated and Mr Simanowitz floated this possibility with him.
Of course he may have been irritated by being interrupted when he was in the course of duties on the ward – that notion is easily postulated – but there is also a world of difference, you may think, between a professional who is interrupted on a ward who may vent some irritation as part of the everyday way of carrying out one’s professional life, a world of difference between that and that which he is accused of. Irritation of inspired professionals, whoever it may be, whether it is a lawyer or a doctor, one comes up against the rock face of the fact that a complaint about it was not made at all in these terms for either eight years, if you are generous, or ten years if you are not. So the risk inherent in all this is that, even allowing for possibilities of the type that Mr Simanowitz floated, there is little basis for making that jump to establishing that of which she accuses Dr Southall.
There is a clue in one aspect of her evidence where there may have been an element of reconstruction, certainly in some aspects of her recall of these events. She agreed this at Day 7/17C D:
“Q You described it yesterday, or the process was that you looked back and got your head around it?
A I think by that it means that...When you are concentrating and trying to remember things there are other things that trigger your memory, and you remember things that you may not remembered when you spoke about an occasion previously. Is that how your mind works? I do not know, but I believe that by really thinking and going through things that I was able to recall.”
That, if I may say so, is a classic example of the prism of time which can affect anybody and may affect somebody – and I put it no higher than that because I do not need to – but may affect somebody who, quite clearly, had an extremely adverse view of Dr Southall, and somebody who had decided that he was to blame for causing harm to her child. This is somebody who, quite separately, has evinced, just in one flash, an element of exaggeration, consciously or unconsciously, it is not for me to say. She was the one who described her child as suffering from faecal vomiting. The reference is Day/24G, not an appropriate description, you may think, coming from an SRN.
The final matter I want to place before you – because you should quite clearly consider all these matters, particularly when you are having to deal with a matter that has been put in front of you based on events so long ago – is Mrs D’s evidence (Day 7/15 16), and I do not ask you to turn it up. In the self same witness statement in 2004 it gives the impression, and the quotation is set out, that her partner, Chris, whose name we have already looked at, was present throughout the incident and thus a potential witness for her. In evidence, two years later, before you last November, she then says:
“I have since been told that he, in fact, was not there and that he had gone off to have a cup of coffee.”
Of itself a small point, but that is what we are having to grasp, small points. The fact that he is not here giving evidence may, may, speak volumes. He may, for all I know, have a different view about these matters. You put all that together, because that is really all there is. You apply the forensic, obligatory duty of the burden and standard of proof to this. Our submission to you is that you cannot find Dr Southall in effect guilty, using a jury term, guilty of these allegations. It would be a leap in the dark to do it and it would be giving an excessive amount of recognition to Mrs D’s evidence, no matter how heartfelt she came across to you, and even though she said to you, “Oh, it is in imprinted on my memory”. You certainly have no evidence of that, that it was so imprinted at the time, certainly for years afterwards.
Madam, that completes the submissions in relation to Mrs D. I can turn to the next, certainly for today, the last matter, that of Mrs H.
THE CHAIRMAN: How long do you anticipate your address on Mrs H will be?
MR COONAN: It is difficult to say, it could be about 45 minutes.
THE CHAIRMAN: I am wondering whether we should take a 10 minute comfort break now and then go on to Mrs H because that would then complete this afternoon.
MR COONAN: If you are content with that, I am content too.
THE CHAIRMAN: Let us take a 15 minute break until 3 o’clock.
(The Panel adjourned for a short while).
THE CHAIRMAN: Thank you, Mr Coonan.
MR COONAN: I now turn to the letter sent to Dr Dinwiddie and the question of the Gwent paediatrician. We are dealing with heads 7 to 9, some of which have been admitted. The live issue issues are to be found in head (b) and ©(i)(ii) and, of course, head 9.
Just by way of preliminary comment, during Mr Tyson’s submissions to you, he gave you a number of references with which I concur, but I could I also invite you to add to your list Panel questions of Dr Southall at Day 16/23E H and Day 16/25A D for completeness.
I think it may be helpful to summarise what is and what is not Dr Southall’s case in respect of these matters because during the course of my learned friend’s submissions to you there was one area where it struck us that he had misunderstood what his case was. If for that reason and no other, I think it might be helpful to summarise it.
The letter in question is at C2. Since we are going to have to look at it in a number of respects, it might be helpful to have it open now. I am going to tell you what is not Dr Southall’s case. It is not Dr Southall’s case that Mrs H consented to this letter in this form being sent to anyone. Dr Southall says Mrs H would never have consented to this particular letter being sent in that form and, indeed, you may think correctly so. Linked with that, I did not suggest, as counsel for Dr Southall, to Mrs H that she had consented to this letter in that form being sent to anyone.
You can see what I did suggest at Day 6/39 and page 40A to B and what I did suggest was that she, Mrs H, had agreed, prior to this letter, to the involvement of a local paediatrician. The two are not coincident.
It is Dr Southall’s case that prior to 22 March, which is the date of that letter, Mrs H had consented to a treatment regime which included involvement of a local paediatrician, but that that proposal or suggestion of a treatment regime was abandoned by Mrs H in the phone call that she made a day after discharge; and that it was as a result of that abandonment of the treatment regime and the inevitable further raising of child protection concerns that prompted the writing of the letter of
22 March to Dr Dinwiddie. That is encapsulated at Day 16/34D.
I say “inevitable further raising of child protection concerns”, because you will remember that the letter of referral originally from Dr Dinwiddie to Dr Southall did have the handwritten reference to – and I am summarising – the possibility of Munchausen’s.
The final element of Dr Southall’s case for present purposes – and I will come back to other elements in a minute – was that the Dinwiddie letter at C2 of 22 March was, as we know, clearly sent to Dr Dinwiddie, but the letter, if it was sent to the Gwent paediatrician, was not intended to be a referral letter to a local paediatrician to take over overall care, for the simple reason, if for no other, that it was wholly inappropriate and clearly was not in its contents a referral letter; and in any event, only Dr Dinwiddie could make the referral.
With that by way of background can I come on please to look at one aspect of the heads of charge and the major one is head 8(b). The allegation is, and I am focusing on the first two words, “you copied.” That phrase requires a construction by you to include the meaning “copied and sent.” There is a distinction between mere copying and copying and sending. Whether that is done by way of amendment or whether it is done by way of you construing that matters not to me, provided the meaning is clear, because it is the sending, allegedly, of the letter that bites on head 8©(iii) and head 9. The reason I focus on this is that the other side must prove that it was sent in order for any of these allegations to get off the ground, and it must be proved so that you are sure that it was sent to an unnamed paediatrician.
Once again I make no apology for bringing centre stage the question of the burden of proof. By the very nature of the whole of this case, because these allegations are so old. one is bound to keep referring to this concept. It is nearly, nearly, 18 years ago.
Dr Southall told you that he first got to know of the allegation in or about 2002,
12 years later, and he told you that at Day 15/37A. He also told you that that fact, that he only go to know of it 12 years later, has had a very severe effect on his ability to deal with this allegation. Those are not my words, they are his, at Day 15/36G. To save time, rather than pulling it out, could I invite you to star that, because Dr Southall has no memory of the events surrounding the question: Was it sent or not? He told you that at Day 11/51C to G.
Dr Southall set out, however, a full explanation to the Panel in response to direct questions on this topic by you, madam, yourself, at Day 16/18A to G, a full explanation as to why it was that he was not, at this remove of time, admitting head 8(b). We say that there is an issue, a significant issue raised here, as to whether this document was ever sent to the paediatrician in Gwent.
What are the arguments for and against? In favour of the proposition that it was sent is the fact that a copy was sent to Dr Weaver, and we know that because she acknowledged the letter, and the acknowledgement is set out at C7, page 49. She was one of those who had the “cc” attached to her name at the bottom of the letter sent to Dr Dinwiddie.
What is neutral one way or the other in favour of the proposition that it was sent? Some time was spent on this during the course of the evidence and it revolves around the fact that the letter to Dr Dinwiddie, when it arrives at Great Ormond Street, had “cc Gwent” on the bottom, and you will see that in C15, tab 5. That comes straight from the Great Ormond Street records themselves. With great respect to my learned friend, that tells us nothing about whether in fact it was sent to Gwent in an unidentified form and tells us nothing as to whether or not it was sent following a phone call.
Equally, the fact that Dr Southall’s reply to Dr Weaver’s thank-you letter (and the thank-you letter is the one I have just referred to, C7, page 49) at C7, page 50 did not say, “Oh no, you’ve got it wrong. She hasn’t been involving other hospitals”, again does not bear on the issue whether the letter was sent to Gwent at all. That takes a little time to dwell on. The failure to comment – which is a fact; he did not – is not linked to whether it was sent or not. It may be linked to other matters, but is neutral.
There are arguments against it having been sent in that form to an unnamed paediatrician. If it was sent, it may – and that is all I need to flag up on the basis of the evidence which has been given to you – have been sent to a paediatrician identified, but only identified after a telephone call. If that is so or may be so, head 8(b) fails. Dr Southall postulated, again at 18 years remove, the possibility that his secretary may have said (and these are his words), “Hang on, this doesn’t look right”, and then taken the steps to make the contact with the Gwent paediatrician (Day 15/35D). It allows me, I think properly, to make the observation, when he floated that possibility, “Well, what do you expect after all these years?”
There is, apparently – and this we would rely on extremely heavily, and it is outwith the world of speculation and maybes – no record of it at Gwent, and if there was, you would have been the first to hear of it. Dr Southall explained that his understanding was that indeed there was no record of it at Gwent (Day 15/35B). Coupled with that, there is equally no reply from Gwent, and that has value in two respects. Firstly, there is no reply from Gwent to the Brompton or to Dr Southall saying, “Dear Dr Southall, what on earth is the letter all about? Tell us more”, or anything of that nature. There is nothing, unlike the fact that when Dr Weaver got the letter in exactly the same form, she replied in full terms, and I have given you the reference already, what
I have called a thank-you letter (C7, page 49).
I raise, therefore, on this issue, a simple plea. It is all very well to make an allegation that it was sent, attracted as you may be by the fact that you have got an unnamed paediatrician (just “Gwent paediatrician” on the bottom, with “cc” next to it) and then make a leap to the effect that it was sent and that it was wrong to be sent in that form. It is another example of making, and I have used the expression before, a quantum leap. Some quantum leaps may be justified if there is a basis, a real basis, on which to do it, but here you are being asked to make that leap many, many, many years down the line.
Madam, for all those reasons, and they are in my submission wholly sufficient, you should at the outset find that head 8(b) is not proved.
Can I turn to head 8©(i)? We entirely accept that Mrs H did, in the course of her evidence, deny any discussion at all with Dr Samuels or Dr Southall about even the topic of involvement of a local paediatrician in the overall care of her child. Equally, Dr Southall himself has no actual memory of such a discussion with Mrs H or Mr and Mrs H at all and he told you that at Day 11/47B and Day 13/67B to G. I am entitled to raise the rhetorical comment: Why should he? Why should he, many, many years down the line? Equally, it may be said, the same may apply to Dr Samuels, for all we know. Why should he have any independent memory of any such conversation.
I entirely accept that there is no note in the clinical notes specifically reflecting a discussion and agreement to the involvement of a local paediatrician in the care of the child, but the Samuels’ manuscript note that we looked at earlier does refer to a note of a parental view and it does have, on that last line that I inquired of you earlier, the reference to “local paediatrician.”
We also have, in support of the proposition of a previous discussion, Dr Southall’s own construction of his own letter, and I refer you, madam, in C2 to the phrase on the second page, in the second paragraph, if you have the document there:
“We put this regime to the parents last week and they initially said that they would like to accept it.”
That letter was written a week later and we note, as Mr Tyson described it, and I think absolutely rightly, the use of the term “we.”
At this remove of time, it matters not for my purposes whether it was Southall or Samuels, but there is support of a contemporaneous nature for the proposition that there was indeed a discussion about the involvement of a local paediatrician; not just discussion, but involvement and agreement.
You will of course be eager not simply to dismiss Mrs H’s memory, even though it is based apparently on 17 years’ time lapse, because in evidence she said – and it is the phraseology she used – “absolutely not”, when it was put to her that she in fact did see Dr Southall in March before the child was discharged. The reference to that is Day 6/14B. “Absolutely not”, she said. What she said was that Dr Samuels had indeed told her that Dr Southall was too busy to see her because he was being interviewed by Sky TV.
You will remember that after she gave her evidence, Dr Southall, as he explained to you, was troubled by her evidence on this point and went away and dug out a page which had not been photocopied for your purposes. It was a page which is in the SC file in C7. If you look in C7, you will see page 178. The sequence begins, if I can invite you to get your bearings, at page 163 and you will see that is an affidavit of Mrs H in family proceedings. That is just to identify the document. Page 163 is the beginning of the document. If you turn to page 178, you will see at the bottom of the page, it should say page 15 and if you turn to page 179, you will see that is page 17. There is a page missing. The missing page obviously is page 16. Dr Southall went back and looked at the original SC file, which I assume is still here and can be checked if necessary, and he found the missing page 16. That missing page is now your D17.
May I invite you, please, to turn that up? If you have not already done so, may I invite the Panel to write on the top what this document is a part of? It is a part of that document beginning at page 163 of page 7, Mrs H’s affidavit dated, importantly, please, 24 October 1991. You will see in the second paragraph of that affidavit what Mrs H is saying. I just pick it up seven or eight lines down:
“We …”
Note the “we” –
“ … finally had a meeting with Dr Southall, but he did not appear to have a great deal of time to spend with us, so we asked if we could consult with Dr Dinwiddie.”
Madam, of itself, in the range of things, a small matter, but it resonates, does it not, very strongly in two respects. First of all, that affidavit was sworn no more than 18 months after the events. She, 17 years down the line, says that she is adamant – and she used the phrase, not me – “absolutely not” did she see Dr Southall. There it is. On her own admission, 18 months down the line, she admits she did see him.
This is a textbook example of how people can be so convinced that they are right and how the prism of time can so distort what they believe. It was fortunate that in this case we had an affidavit to fall back on. In some of the other cases, of course, we did not. Dr Southall explained how he came to this at Day 11/44F-46.
Completing the circle, madam, the Dinwiddie letter at C2 refers to parents, as in, “We put it to the parents last week”; so does the Samuels’ manuscript note, referring to “parental view” and so does the affidavit. So we say that when consider 8©(i), on the evidence which is in front of you, you cannot find that proved.
I turn to head 8©(ii). One has to read this carefully, may I respectfully suggest, because the allegation in the stem is that “you did not seek or obtain Child H’s parents’ consent to any letter being sent to an unknown local paediatrician”. That cannot be disputed as a pure matter of fact. It has not been suggested to Mrs H that consent to any letter about a local paediatrician was either sought or obtained, nor does Dr Southall in his evidence assert that consent was obtained. So what I am saying is that as a simple assertion of fact, that is made out, but it has no forensic consequence, that admission, since it is the specific letter, the Dinwiddie letter, in head 8(b) which does have forensic consequences. By way of emphasis, we do not seek to rely on the question of consent being given at all for the letter at 8(b).
I want to come, please, therefore to head 9. I make some general observations about this. One or two of these observations may overlap with a number of comments I have already made. Firstly, this letter, whoever it went to – and I include Dr Weaver here – it was never intended to be a referral letter to take over the overall care. The top copy, in other words, the actual letter at C2, was being sent to Dr Dinwiddie, who still had overall care and, as I have already said, only he could change that. Insofar as Dr Southall was thinking of sending a copy of the Dinwiddie letter to anybody else, namely, Weaver and the Gwent paediatrician, insofar as he was thinking of doing it, you have his evidence as to what his objectives were: firstly, to deal with the heightened child protection concerns and secondly, and linked with that, to deal with the situation arising because this child was at home, the parents having rejected the treatment regime proposed, at home with a tracheostomy and the utility of a ventilator, therein the potential for harm.
The objectives of course may be one thing, but as Dr Southall accepted, without any covering letter or phone call, that is not an optimal way of achieving either of those objectives. The reasons, the purposes, for sending a copy of the Dinwiddie letter to Dr Weaver – this is a most important aspect of this case – were the same as his thinking in sending a copy to Gwent, if sent, but I am concentrating on the thinking. The thinking in sending a letter to both was the same. He set that out in a number of passages in the course of his evidence taken as a whole. May I just give them to you, please: Day 11/51B-E, Day 11/52D-53A, Day 13/66G, Day 15/33E and finally Day 15/34B.
With that in the back of one’s mind, that the objectives in sending the letter to Weaver and the Gwent paediatrician were the same, let us pause for a moment and look at what Dr Weaver’s response was. She, we would respectfully submit, did not have a problem with it. Even if not in its content optimally fit for purpose, to adopt one of the observations of my learned friend, in order to grasp fully the submission I am making and to save time, could I invite you, please, to look very carefully at the content of what I have called her thank you letter (C7, page 49)? It is dated 3 April 1990, addressed to Dr Southall. Indeed, she went a step further at C7, page 51, and the following month, on 9 May 1990, she wrote a letter to the family and offered them an appointment. It is a fact that Dr Southall is not charged with sending an identical letter to Dr Weaver without Mrs H’s consent, because it is absolutely clear that Dr Southall did not have Mrs H’s consent to send a copy of the Dinwiddie letter to Dr Weaver. The only difference between the two situations is that on the one hand, Dr Weaver’s letter was addressed to her personally and, in the case of the Gwent paediatrician, if it was sent, it was apparently not addressed to a named paediatrician.
As a side argument, it was suggested by Mr Tyson at Day 13/66F to Dr Southall that it was not open to him to send a copy of this letter, the Dinwiddie letter at C2, to Gwent or Weaver, albeit that he is not charged with that. It would appear the basis of the suggestion which Mr Tyson made was that he was not permitted to do that because of the terms of the referral letter way back in 1989. May I deal with that shortly?
With great respect, that is an absurd proposition, because one has to look at the terms of the referral. That is the first point. The second point is that Dr Southall has – and there appears to be no dispute about it – a general duty to act in the interests of the child, which is a paramount duty. If he is troubled by child protection concerns, he is entitled so to act in what he perceives to be the child’s interests. The fact that the body of the letter may not be optimally phrased in order to achieve the purpose is arguably a different point. Here, the letter to Dr Weaver, as I say, was received with contentment. So much for that side point.
Can I then come finally to the individual heads. Under head 9 I make a number of general observations. First, the proposition that I advance is that Dr Southall was entitled to send this letter in those terms to a named paediatrician, even if there was no covering letter, even if there was no consent by Mrs H. I have touched upon that already but it is a proposition that I put at the forefront of our case in respect of this. In this regard I touch on the legal proposition that there is no duty of care owed to the mother. In other words, if in considering the sending of the letter without the mother’s consent to Dr Weaver, Dr Southall owed Mrs H no duty of care at all.
That proposition is enshrined most recently in a House of Lords’ case, of which I have a copy of the headnote which I propose to put in. We say that that is now clear and represents the law as it has been understood for some time; no duty owed to the mother at all.
We also say that, in those circumstances – and I have the letter to Dr Weaver well in mind – he had no duty of confidence to the mother. If he judged that it was appropriate in the child’s interests to take the action he did, and it meant that the mother’s perceived interests were damaged, that was a result which of itself is an inevitable consequence; but it is an inevitable consequence.
As the principle makes clear in the case, the two interests to be judged here are not equal in the area of child protection. I think it appropriate if I just hand in at this stage the headnote of the judgment. I have a copy of the full judgment for the learned Legal Assessor and I know my learned friend already has it and he has seen a copy of the headnote.
THE CHAIRMAN: This will be D23. (Document distributed and labelled D23).
MR COONAN: The facts of this case were never determined, this came before the court on a preliminary issue. The holding by the House of Lords, if I can take you to that section, states in the second paragraph:
“Public confidence in the child protection scheme could only be maintained if a proper balance was struck between the need to safeguard a child from parental abuse and the protection to be given to a parent from unnecessary interference in his family life; that the child, not the parent, was the doctor’s patient in whose best interests he was obliged to act and although the interests of the parent and child were normally coincident they were not so where the possibility of abuse arose; that where the doctor’s suspicions were aroused he had to be able to act single mindedly in the child’s interests without regard to the possibility of a claim by the parent; that, given the seriousness of child abuse as a social problem, healthcare and other child care professionals should not be subject to conflicting duties when deciding whether a child might have been abused and what further steps should be taken; that potential disruption to the suspected parent’s family life did not justify according him a higher level of protection than other suspects of crime, that the investigations should be conducted in good faith; and that, in the absence of sufficient proximity, it was, accordingly, not fair, just and reasonable that the common law duty of care claimed by the parents should be imposed.”
I recognise straight away that what you are concerned with is not the question of a common law duty of care sufficient to establish the basis for an action in negligence. What I am submitting is that, as the law is now clear that, in acting as he did, Dr Southall, in sending the letter first of all to Dr Weaver, owed Mrs H no duty of care at common law – that much that case establishes. Even though she may have felt, because no consent was obtained, discomforted and may have suffered distress as a result, she would have no remedy.
Equally, we would submit that – and here one has to be careful not to confuse questions of professional conduct with legal duties, that much I recognise – by parity of reasoning, no duty of confidence was owed to Mrs H in those circumstances. If that were right, that would impair the proposition that he owes no duty of care to her.
In the Dr Weaver situation, there is no breach of confidence, we would submit, to Mrs H. The situation is potentially different in a situation where a letter is sent without consent to an unnamed paediatrician. What does that bring into it? It can only bring into the mix, as it were, the fact that by sending it to an unnamed paediatrician there is a risk – and it can be put no higher than that – a risk that the document, the letter, may be either (a) delayed in getting to the paediatrician, or (b) may be seen by more than those who might otherwise see it, even if it were sent to a named paediatrician.
The additional elements which are created by the sending, if it were sent, to an unnamed paediatrician do not in effect bear on the question of a breach of confidence, they bear upon the efficiency given the stated intention, because, as I have already submitted, Dr Southall would in effect be immune – if I could use that word in a broader sense – from the allegation that he was in breach of confidence owed to the mother. He certainly, we would submit, is not in breach of any confidence owed to the child because he is, by definition, acting as he perceives it in the child’s best interest.
The position was put helpfully, you may find, by Professor David in a passage which I will give you and invite you to star at Day 5/18A F. Whether the letter is sent to a named paediatrician, as in the case of Dr Weaver, or to an unnamed paediatrician, the question of breach of confidence is the same. Where it differs, as I have said, is the fact that the efficiency is impaired or may be impaired. That is why it led Dr Southall to agree, when he was asked about this, that the sending to an unnamed paediatrician would be suboptimal (his phrase) and (his phrase) inappropriate. That is precisely the term used in head 9(a).
So Dr Southall has admitted already that if this letter was sent to an unnamed paediatrician, it would have been inappropriate. The reference for that, which you may think is an important and clarifying piece of evidence, is Day 11/57 H and Day 15/34A. Of course, and I say this in closing, he admitting that it is suboptimal or inappropriate, may be one thing. That is not an admission by any stretch of the imagination to an admission under head 9(b), which is a matter which you will have to determine, always remembering the preliminary question is whether this letter was ever sent in the first place.
Madam we have reached 4 o’clock. I have completed what I want to say about Mrs H and the Dinwiddie letter. You may think that is a convenient moment.
THE CHAIRMAN: Thank you. It now remains for you to address us on matters relating to Mrs M in the morning. We will adjourn now until 9.30 tomorrow morning.
(The Panel adjourned until 9.30 am on Wednesday 21 November 2007)