GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Wednesday 21 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-FOUR)
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, Continued
By MR COONAN 1
DISCUSSION 29
ADVICE FROM THE LEGAL ASSESSOR 34
THE CHAIRMAN: Good morning. Mr Coonan, you are going to complete your closing speech.
MR COONAN: Yes, I am, madam, thank you. With your leave I am going to deal with the case involving Mrs M and Child M1 and M2. Just by way of preliminary could
I take you to head 3(a)? Having heard how Mr Tyson dealt with this in his closing submissions the way is clear for me to admit 3(a). Mr Tyson was absolutely right in anticipating the basis upon which there was no admission thus far forthcoming. It was really the possibility of any particular technical meaning to be attributed to the phrase “by hanging” in head 3(a). Having heard him, there is no such technical attribution, it is a merely descriptive term and I am therefore prepared to admit it. I told Mr Tyson that this morning.
THE CHAIRMAN: In that case I need formally to announce that head of charge 3(a) has been admitted and found proved at this stage. Thank you.
MR COONAN: There is another technical matter, but before I deal with that could
I just gather together the heads of charge with which you are concerned, I hope helpfully.
The major issue is head 5(b). Coupled with that is head 6(a), (b), ©, head 17(a), (b), ©, head 18(a), (b), ©, and of course linked Appendix 3. I am going to make global submissions about the case involving Mrs M, largely on the basis – and I would emphasise the word “largely” – that the other heads that I have mentioned would tend to stand or fall in relation to your finding in respect of head 5(b), but with this rider: in relation to head 18(b) you will see the phrase in head 18(b) “acting with parental responsibility.” It is a matter to which I have drawn the attention of my learned friend this morning. That cannot apply to the case of Mrs M because (and I can give you two references) parental responsibility from the time of the emergency protection order vested in Francine Salem as a member of the social services of the local authority. You will see a direct reference to that in the emergency protection order made and you will see that in tab (q). I do not ask you to turn it up at the moment, but it is there in black and white. Also, Miss Salem told you that at Day 17/33E. As I say, I mentioned it to my learned friend this morning, and I invite my learned friend to make an observation if he wishes at this stage. I do not mind.
MR TYSON: Madam, I am grateful. My learned friend was good enough to discuss this technical matter with me before and in terms of any findings of fact in relation to Mrs M and the M children I am not seeking a finding after the word “mothers” in head 18(b). So, in relation to the M matter, you can, as it were, put in brackets “while they were acting with parental responsibility”, because that section of that paragraph is not applicable to the M case.
THE CHAIRMAN: Mr Coonan, is that a satisfactory resolution?
MR COONAN: Indeed so, yes. Mr Tyson and I agree.
THE CHAIRMAN: Thank you.
MR COONAN: With those preliminaries out of the way, can I come then to the substantive matters, and they, as I say, really are directed to the substance of head 5(b).
What must be proved here? It must be proved before you can find head 5(b) proved that Dr Southall made a direct accusation of murder to Mrs M. Anything less than that will not do in order to establish the ingredients of head 5(b). In other words, if the Panel are left in the position of believing or being sure that what Mrs M came away with was a belief or a perception of an accusation of murder, that will not do. You have to be sure that he made a direct accusation of murder.
You will remember the terms of the direct accusation of murder. It is set out in the evidence of Mrs M at Day 2/14D and Day 2/18D. I draw attention to it because on any view it is a graphic allegation. May I remind you what it was? These are the terms that have to be proved.
“I put it to you that you killed your son by injecting him, hanging him up, leaving him there to die and then ringing the ambulance.”
Our submission is that the evidence, taken as a whole, is consistent with, at most, a perception on the part of Mrs M that she was being accused of murder, followed thereafter, after a short passage of time, with a degree of what I may call fermentation, that that perception somewhat firmed up and we end up with the position that we will see on 3 June 1998. Fermentation, of course, can happen unconsciously, it can happen for all sorts of reasons. It is not for me or Dr Southall to prove any of these matters at all.
You will hear from me, just as you heard from Mr Tyson, on Mrs M’s mindset, because it may be, it is for you to judge, that Mrs M’s mindset is the key to an understanding of what actually went on in that room that afternoon.
May I put out of the way a number of other matters which were touched on by
Mr Tyson, matters which preceded the interview, and the first concerns the events and opinions being expressed, or beliefs held by Dr Southall and Miss Salem before the judgment of His Honour Judge Tonkin which you see in C4. The contact sheets which you have in C1 up to the time of judgment are self-evident; you have them and you can read them. The high-water mark of Dr Southall’s belief or opinions up to the time of judgment are set out in what is called (a precise quote) “a very preliminary report.” It is dated 2 February 1998 and you will see that at tab (t).
That is the high-water mark of his view. The high-water mark of Miss Salem’s opinion is in her witness statement on 3 February 1998 in tab (u). There is no doubt that the opinions expressed up to that moment in time led to the making of the emergency protection order which you will see in tab (p) and led also to the application being made for an interim care order which you will see in tab (w). Those are the basic building blocks which deal with the events and encapsulate the opinions leading up to the judgment.
I want to make an observation about that. Those documents – and I invite you, obviously, to refresh your memory by looking at them again – show at the very most, and I stress that, that Dr Southall had an early formed view that this mother was suffering from Munchausen’s Syndrome, rightly or wrongly; but that is the view he had. They also show that Miss Salem and, on the evidence, others shared those concerns, not to a greater degree but either to the same degree or lesser degree. We would say it does not matter where there were shades of difference. You can read the documents and you can see the extent to which those beliefs were held.
As to the judgment itself, C4, I think you have had extracts from the judgment read to you now on two or three occasions and I invite you again, please, to read the judgment as a whole, including the post-judgment exchanges between the judge and counsel representing the various parties. True it was that things had, to focus on one expression which has been picked out of the judgment (page 4) “moved on.” They had, but they had moved on, you may think, in the light of the evidence, to encapsulate broader issues, matters concerning the psychological welfare of the child, but as well as the issue of Munchausen’s or not.
You will remember that Munchausen’s, as representing a physical risk to M2 arising out the death of M1, had not been fully explored by the time of the judgment. The principal reason for that, as you heard (and you will see references to it in the contact sheets) was that the social services had been forced to abandon that as a basis for seeking to establish that the threshold criteria within the Children Act had been established. The reason for the abandonment was the fact that Dr Southall was not available. All he had done was to provide a “very preliminary report.” He had not provided a definitive report and he was not available to give evidence. He was not in the country. So, the issue of Munchausen’s as a label to investigate the risk of physical harm to M2 flowing from the death of M1 was still very much on the agenda. You heard evidence from Francine Salem to that effect and, indeed, all you need to do is look again at the contact sheets.
The existence of the judgment, you may think, is no support whatsoever for any proposition that social services at least should not have been pursuing Munchausen’s as a cause or potential cause of harm to M2.
The judgment was followed by the letter of instruction, and to remind you it is tab (x) and it is dated 17 March 1998 and was written some seven days after the judgment. What I say about the letter of instruction, since matters have been raised about it, is this. The only possible credible basis for Dr David Southall to be instructed would be to follow up the pre-existing concerns about Munchausen’s representing a risk of physical harm to M2 which had not yet been aired at court, but which had been aired and had been the subject of substantial concern by Dr Southall, on the one hand, and also social services, on the other. When I say “social services” I do not just mean Francine Salem.
Therefore, both with the judgement as background one comes to asses what it was that the letter of instruction was inviting Dr Southall to do. Although it is a point readily made that there is no specific reference to Munchausen’s in the letter, the fact is that if you look at the list of elements that the solicitor, Mr McLaughlin, was seeking an opinion on, you have to go to the third item on the third page to see whether or not, objectively, that is sufficient to cover what both Francine Salem and Dr Southall understood that he was going to be asked to do. When she was asked about the terminology on page 3 of the instruction, she told you that that would be sufficient to cover the issue that was ultimately, as we know, covered by Dr Southall, although she was not herself aware at the time of the letter.
It is significant, you may think, and this could have been the case, that no evidence has been called from the social services department nor specifically from Mr McLaughlin, a solicitor of the Supreme Court, to say that Dr Southall went beyond his brief. That could have happened if that is the view. Equally, if it was felt by the solicitor, Mr McLaughlin, that even Francine Salem had exceeded her brief, there is a deafening silence there.
This is why I am spending a little time on this. This is a classic example of the risk of confusing suggestions made by counsel in a case with evidence. The suggestions made by Mr Tyson, unsupported by any expert evidence in this case in support of Mrs M, are not evidence.
One comes to the pre interview but post judgment events. One of the matters which has loomed in the case has been the supposed role of the police. Once again one has the suggestions made by Mr Tyson that either in principle, or because of the memorandum of 16 April, the typed memorandum that we put in, D21, that Dr Southall should not, together with social services in the person of Francine Salem, have been pursuing his particular concerns about M1’s death.
Again these are, and can only be, suggestions unsupported by any evidence from, for example, Professor David. There is no evidence from the police to the effect that this is something that these other professionals should not have been doing. It could have been the easiest thing in the world to have called these police officers. Moreover, the whole of the approach here was approved, you have heard on the evidence, by the senior social worker, the team leader, Mr Barclay. These suggestions, in our submission misunderstand the parallel jurisdictional role, one of a criminal investigation which might or might not lead to charges which are governed by the Police and Criminal Evidence Act, and investigations – and I use these phrases in broad terms – pursued by social services and, in this case, pursued following a court judgment.
Social services’ investigations, of course, follow the paramouncy principle that the child’s interests are of the paramount concern. As Francine Salem put it to you, you have to manage the risk, whatever the police may do. It may well be that the police, to take an example, may not charge anybody, but that does not stop, does it, any investigation being carried out by social services, whether jointly with the police or otherwise? They have quite separate duties imposed upon them under the Children Act.
In any event, as a matter of pure history, the question of the police themselves carrying out or re opening an investigations – using that term in its strictest sense, did not happen. You know that from the document in C1 which is (jj). All the police did was review the material they had, which is exactly what Francine Salem thought they were going to do. You need to look carefully at the language used in C1.
Finally, before the interview itself, I turn to a couple of other observations. What of Dr Southall and Miss Salem’s actions themselves before the 27th? Once again the contact sheets are, we suggest, self evident. They are all as you heard, contemporaneous entries and have a value for that. Whatever Dr Southall saw his role to be in carrying out this post judgment assessment, that role was approved by social services, ultimately by the team manager. Those explanations, and I include Dr Southall’s apparent zeal – and I use that advisedly – his zeal to investigate this, simply explains, and does no more than provide an explanation, as to why he wanted to raise the questions about the belt – you can see the list of elements about that on page 102 of the contact sheets – why he wanted to raise the questions about the belt and why he wanted to embark on an exploration of what I call the three scenarios or the hypotheses.
What his firm belief and his enthusiasm for doing it does not prove is that he then embarked on an accusation of murder. There is yet again a quantum leap which is purely speculative if you are seeking to make that link. This Panel, I know, will be sensible in approaching that and be moderate in making inferences of a common sense nature.
There is a further dimension to this. That is the question of Miss Salem sitting in with Dr Southall. Dr Southall explained to you his reasons why he rang up Miss Salem on the morning of the 27th and invited her to sit in with him (Day 12/23C E). One of the reasons, and you may think an important one, is self protection. These were clearly going to be sensitive matters to be raised with somebody in these circumstances, and you may think that was, indeed, a very sensible thing to do.
Miss Salem’s reasons were more pragmatic, but, ultimately, she was telling you that by sitting in it would save Mrs M the ordeal of social services having to deal with the same matters a second time. You may think there is something in that too. In any event, the whole issue about sitting in was approved by the team manager, so this was not just some cosy little arrangement of a simpering Salem, if I can put it that way, being flattered to be asked to come and sit with Dr Southall, this was a matter which she took to the team manager who approved it.
In any event you have no evidence at all that this was in any way in breach of any rule, or standard, or approach or internal practice approach of social services. It is something which had been done before, you heard from Miss Salem, in cases of non accidental injury and this is but one aspect of the spectrum of suspected non accidental injury albeit of a particular and less common type.
The idea was floated by Mr Tyson, again without any, we would submit, basis whatsoever for doing it, that by sitting in there was a conflict of interest; not so. Dr Southall was only instructed by the social services. Social services in these circumstances were instructing him and there would be every possible justification, we would submit, for a member of social services sitting in with Dr Southall. The position would be completely different – and my learned friend would have a point and I would not dispute it – if he was jointly instructed; any member of any of the parties sitting in, that would be a matter of concern, but not so here. He has no basis for saying that. Again no critique whatsoever from Professor David, an expert, to say that this should not have happened. Again, what it is is a suggestion and you must be very careful not simply to accept that if, as I say – equally valid you may think – that it is perfectly acceptable. As you know, Miss Salem told you she had sat in with paediatricians before in non accidental injury cases.
A brief word about the situation in relation to notes. It has been over the space of a long time, a bit of a process in getting to where we have got to at the moment in relation to documents. It might just be helpful if I bring the pieces together.
First, Mrs M agreed (Day 2/29B C) that both Francine Salem and Dr Southall were taking notes in the interview. That is the starting point. Quite apart from that, the solicitors’ letter – which was within (gg) pages 19 to 20, that is from the local authority solicitors – actually sets out the fact that notes were being taken, certainly by Francine Salem. That is the background to the taking of the notes in the interview. Miss Salem’s interview notes that I have just been dealing with were found after many years and you have that at D21/H. There appears to be no dispute about that fact.
Miss Salem expanded on those handwritten notes (Day 21/37H) in further handwritten notes the same day and gave the expanded handwritten notes to the typist and the typist typed the expanded version into typed notes which you have in tab (gg). Those notes are dated 28 April. Later, as you heard from Dr Southall, a copy of those typed notes in tab (gg) was sent to him and he used them as an additional basis for the compilation of his report dated 20 May 1998. I mention the 20th because earlier somebody suggested it was the 30th; in fact it was the 20th. You will find that in tab (z).
Dr Southall was not the only one who was sent a copy of Miss Salem’s typed notes because the Social Services’ Legal Department sent a copy of the same typed notes to Miss M’s solicitors. They sent it to the solicitors on 18 May 1998 and you will see that in the tab (gg) at page 22.
To complete the documentary trail, by 3 June 1998 – I do not think we have a precise date – Mrs M’s solicitors had by then received a copy of Dr Southall’s report. We will have to look at that later. You can divine that from looking at tab (gg) again internally at page 29. There has been a dissemination of the typed note and, ultimately, the report.
One comes to the interview itself. I invite you in your minds’ eye to try and remember the evidence on the seating arrangements because you may find them instructive. According to Mrs M, Miss Salem sat to her side and slightly back from her (Day 2/57A). According to Francine Salem, the position was very different. She said that she sat opposite. She was 9 ft apart with Dr Southall in the middle although Francine Salem was to one side of Dr Southall so that he could not actually see her out of his eye (Day 17/68B).
You might care to bear in mind that difference of recollection when you assess what is being said took place in this room and when you assess what Miss M says was her degree of upset which we will come to. I take the figure of 9 ft apart as an agreed figure between myself and my learned friend when the evidence of Miss Salem was being given; you may remember that when she described it.
I come therefore to the matter of common interest between myself and my learned friend which is Mrs M’s mindset. I am going to invite you to make careful judgments about the totality of this. We say it is highly relevant to the issue of possible subjective perception of an accusation of murder. The first question is what is the evidence relating to the effect upon Mrs M of the emergency protection order and the removal of her child, M2. I start by reminding you of what Miss Salem said at Day 17/44E. She said this had been traumatic for Mrs M although by the second home visit in February – and that is referred to in the contact sheets – and thereafter, she had begun to calm down. That was the snapshot provided to you by Miss Salem. According to Mrs M, however, the picture is a little different. She told you that she was emotionally upset because of the removal of M2. Her emotions she said were “very high indeed”(Day 2/25D). She was angry and upset at what had happened (Day 2/19G). Indeed she was at a loss to understand how this EPO had come about. She knew by the time she walked into the interview that the EPO had been granted because it was thought that her child, M2, was at risk of significant harm by her (Day 2/19G). She said it was not surprising she was anxious before the interview (D2/26E).
At the other end of the spectrum was Dr Corfield, who saw her – and I shall be dealing with Dr Corfield’s evidence later – but for present purposes she told you that when she saw Mrs M on the 28th, the next day, she said that Mrs M was angry with social services because of M2’s removal pursuant to the EPO (Day 2/76F). I close this part with a quote from Miss Salem:
“It was going to be a difficult interview for Mrs M in any event”.
Madam, that was an observation by Miss Salem on the basis of what she knew about the topics that were going to be dealt with, of which of course Mrs M did not know were coming.
What about Mrs M’s expectations when she walked into the interview? Although she thought the meeting would be “a medical” to see, as she understood it, if she was suffering from Munchausen’s (Day 2/5H) she did not know in advance that the interview would consider the circumstances of M1’s death at all. She was in complete ignorance. (Day 2/21D F). She thought this “medical” would be confined to an examination of her emotions. She expected a talk about her emotions, her thoughts and her feelings. (Day 2/24G and 39G). She thought this meeting with Dr Southall would be exactly the same as the meeting had been with Dr Dora Black. (Day 2/24G). She thought that Dr Dora Black and Dr Southall came from the same medical discipline, which of course they did not. (Day 2/21C and day 2/58C).
Mrs M had a particular view about Dr Black. She told you that Dr Black was really concerned about M2 and was sympathetic and focused on M2 (Day 2/23 54 56). She thought that interview was, and these are her words” very nice”. They had travelled down to see Dr Black and the family had gone off to see the sights. That interview was about her thoughts and feelings, as she explained it. She told you that there was very little, if any, focus on M1’s death (Day 2/24F).
Thus it was that when Dr Southall raised questions about M1’s death, these were wholly unexpected and she was moved to say she was seriously jolted (Day 2/25D). Thus you can see immediately that she had no idea that Dr Southall was going to bring up these painful matters about M1’s death. But for her, as we can now see, matters were even worse because there was a problem about the very presence of Francine Salem. Mrs M did not know, and this is accepted, that Francine Salem would be present in that room. Mrs M told you in the course of her evidence that neither Dr Southall nor Francine Salem explained to her why Mrs Francine Salem was present (Day 2/6A E) or indeed seek her permission for Francine Salem to be there. Madam, that is agreed. Dr Southall had not explained either precisely why he wanted to see her (Day 2/57F). Indeed, again, as you can imagine, understandably, she was moved to tell you that if she had known that Francine Salem would be there, she would have brought her solicitor along. Indeed, her solicitor did not know either that Francine Salem was going to be there (Day 2/6G).
To make, we would suggest, Mrs M feel vulnerable and discomforted, her husband could not come because of his employment difficulties. You have a letter in your bundle which sets that out. So it was that, as she told you:
“I just thought it would be me and Professor Southall.”
She felt very strongly about the fact that Francine Salem was there because she said:
“I did not want her [Francine Salem] there”,
and that she made her feel uncomfortable.
That is Day 2/58G. It is not surprising, you may think, because she knew by then, as she told you – it is obvious she knew – of Francine Salem’s role in the EPO and in the interim care order application, and thus Francine Salem’s role in having M2 taken away. You know that she, Mrs M, felt so strongly about Francine Salem’s presence that she made a formal complaint through her solicitor on 6 May 1998 (tab (gg), page 19).
Not only did she have a problem – and I do not criticise Mrs M for this – about Francine Salem there, she also had a problem about Dr Southall. She understood, did Mrs M, from post-EPO case conferences, that M2 had been taken away at the request of Dr Southall. That is what she believed (Day 2/4D). So, when you heard evidence from Francine Salem that she herself, even allowing for what may be anticipated generally with parents following an EPO, was nonetheless surprised at Mrs M’s attitude towards Dr Southall at the outset. She was, said Miss Salem, aggressive and “bolshy” (Day 17/69D to H). You may think, therefore, in those circumstances not surprising.
In addition to all those factors that I have laid before you, what about the possible outcomes for Mrs M as a result of the interview, should it go badly for her? Mrs M knew before the interview, as I have said, that it was suspected by others that she was suffering from Munchausen’s. She knew that it was suspected by others that M2 was in danger from her (Day 2/5A). She knew that it was suspected that she had abused M2 (Day 2/2D) and she knew or appreciated that M2 might yet be taken away again when the matter went back to court and an application may be made for a full care order if evidence of Munchausen’s were to emerge. She knew all that and she accepted that (Day 2/26D). She also knew and appreciated at the time of the interview that both social services and the Guardian ad Litem who represented M2 – and that must not be lost sight of, a separate representation and a guardian – also had serious concerns about the existence of Munchausen’s. So, she knew that (Day 2/20C and 21A).
What does all this add up to, this summary of the position, when I have drawn the threads together? What does it add up to? Mr Tyson said to you that it must have been a daunting prospect. I agree. He said that to you because he put it in cross-examination to Dr Southall at Day 14/51D. Mr Tyson said to you that she would have been on the back foot. I agree. Mr Tyson has hit the nail on the head, but not for the reasons he made those comments. The reason for drawing the threads together and adopting those descriptions is to demonstrate that there is here a very real platform for the risk of misperception when the conversation went into extremely sensitive matters.
When the interview began Mrs M told you that she did not understand or appreciate that the questions were being asked in the interests of M2. I am not suggesting she should have; the point is she did not (Day 2/34E). She said the first time anyone had raised the question of murder with her, the first time anybody had done it, was in this interview by Dr Southall (Day 2/34E to F). In the course of her cross-examination she said, and I ask you to look at this quote later, that she was upset simply because he said that murder was one of the three scenarios. Again, it is not a criticism of her, a natural thing to have happened (Day 2/34B to C).
Our submission against the whole of that background – and I do not pretend to have covered every aspect of it, is you must look at the whole and make your own judgements as you will – is that any discussion using that term and that word in its proper sense, in its neutral sense, any discussion, any discussion of the scenarios which includes the matters set out in the typed note of Francine Salem, and more particularly covers the matters which Dr Southall identified in his report (tab (z), page 30), the references to sedation and so on, any discussion about matters like that, carries with it an inherent risk that the listener in the position of Mrs M is going to feel that she is being accused of murder. That is the risk.
It may be that one may say to oneself, “That is an argument for not embarking on it”, and there might be fruitful discussion about that, but that is not what Dr Southall is charged with.
When you look at Mrs M’s evidence you also have to consider whether there is evidence within it of internal inconsistencies. I am going to give you three examples where there are complete internal inconsistencies. For the interests of time I shall give you the references with a comment, and invite you again, when you retire, to look at them, because they are important and they do bear on the question of whether you feel able to rely wholly upon what she says.
Firstly, she made a number of observations in her evidence in November 2006 in three respects, whereas in the witness statement that she had made for the purposes of the proceedings, which was made in June 2006, the complete opposite, we would say, appears. The point that emerges from that is that in June 2006 she is saying one thing, in November 2006 she is saying the opposite.
What are these three points? The first one is this. She said in the course of her evidence (Day 2/30C and Day 2/31C to D) that he did not allow her to answer in her own time. Look at the witness statement extract, if you will, at Day 2/31B, and make your own assessment.
The second point of inconsistency was when she said this (Day 2/23E):
“She [Dr Dora Black] did not seem that concerned about my relationship with my husband.
Compare and contrast the very opposite in her witness statement at Day2/24D.
Thirdly, which has a further direct reference to the evidence of Miss Beth Parry, which we will come to later, but for present purposes she told you that she was not hysterical in the interview but she was hysterical in the solicitors that day. It is the first part of that that I am interested in, that she was not hysterical in the interview. That is Day 2/36D to 37E, “I was not hysterical in the interview.” Compare and contrast that which she said in the witness statement at Day 2/37F:
“By this stage I was hysterical [in the interview].”
You will have to assess what weight you give to her evidence in all respects, and as
I say, do not just rely on the fact that I have pulled out and pulled together extracts. You must look at the evidence as a whole.
I want to set aside what Mrs M had to say in that respect and I want to turn, please, just to examine what the complainant’s case really involves by way of assessing
Miss Salem’s role here. The case advanced, in our submission, requires Miss Salem to have sat by, supine – supine Salem – complicit, turning a blind eye. It requires Francine Salem to have sanitised her handwritten note, to have sanitised her typed note, to have sanitised subsequent contact sheets and to have sanitised her memory and also to have failed to alert and/or seek advice from her team manager, someone she had been seeking advice from as standard practice throughout the development of these matters.
You may care to consider those observations against the backdrop of considering what the other side’s case actually is. Mr Tyson sought, you may think to confine a lot of what he had to say about his case to matters of tone. You may think Mr Tyson was rather big on tone, but it is far, far worse than tone, is it not? If what is being said here is right, it is – and I make no bones about it – wholly unprofessional. You have been told that there was a hectoring manner by a consultant paediatrician, aggressive questioning, an uncaring approach, sarcastic comments, a heated discussion certainly in one place, and at several stations within this discussion comments by this consultant paediatrician to this mother to the effect, “I don’t believe you”, and comments to the effect that, “If you don’t answer you must be guilty” and “If you don’t answer you must be hiding something”, described by Mr Tyson in his closing speech as threats and inducements; and that the interview was marked by, according to Mrs M, Dr Southall steamrollering her. These go way beyond matters of tone.
Just on that point, steamrollering, you may care to judge that against the structure and order of the typed note. It is said that Dr Southall told this mother that the solicitor had given her wrong advice, culminating in, according to Mrs M on more than one occasion, a direct accusation of murder – on more than one occasion.
On any view, Miss Salem, hearing all that, if it happened, must have been profoundly disturbed. I hope I do not exaggerate when I say, by way of comparison, this is not a 16-year-old on work experience.
You are going to have to look at Miss Salem’s typed note, as you know, and Mr Tyson observed, and in my submission accurately, that it is agreed to be broadly accurate. By that, it follows that the structure is accurate. The sequencing in the document is accurate, the direct quotes attributed to Mrs M in the note are accurate. In one instance, and you will have to look at the document as a whole in (gg) at page 25 because that is the unmarked version that you have, you will see that Miss Salem accurately set out what Mrs M’s allegations were against the teacher whose name you have had. It set out accurately the whole of the issue of bullying accurately recorded and captured by Miss Salem. When you look at page 25 of (gg), which is the main page for scrutiny
I would suggest, and you look at how she describes reference to the three scenarios, she says, in the note, and I quote:
“Dr Southall then went through the three scenarios.”
Can that really be Salem speak for a direct accusation of murder which, by definition, she would have had ringing in her ears when she sat down the same day to write out the handwritten version of the typed note, because on page 25, at the bottom of the page, there is an account written by Miss Salem of what I call the belt incident. Yet, it is the one area of the document of any real substance where Mrs M says that Miss Salem has the order wrong. Has she? Why should she do that unless the whole thing was deliberate, wrong and unprofessional on the part of Miss Salem? Can that be right? You have seen her, you have to make a judgment about her. We say that Miss Salem captured the structure, the sequence, the order and the content, including the content at the bottom of page 25 of (gg) about the belt absolutely accurately. If that be right, that causes serious damage on its own to the case put forward by Mrs M.
Of course, the value of Francine Salem’s evidence does not rely and rest on the content of the typed note. She brings to this some degree of memory. On the one hand, she told you that she had no real memory of the content and of the elements of the conversation independently of that which is in the typed note. You may think that is probably not surprising. After all, it is a stick that I would have been using to beat other witnesses with for their lack of recollection. Equally, however, this was an unusual case. She told you that she did have an independent memory, even now, of Mrs M’s initial aggressive response to Dr Southall which surprised her. She has kept that in her memory. But the other aspect that she had a memory of was how frank Dr Southall was. She had never met him but once before when she had gone round with the team manager to see Dr Southall; she had seen him once before – how frank, but not accusatory in his approach.
She was struck, she told you, by how well he had handled sensitive matters, discussed openly in contradistinction to how she had had experience of other professionals in the way they had handled things, only to speak openly about the individual behind closed doors in a professional meeting. That is not intended to be a criticism of anybody, it is just a marker which leads her to have, you may think, a residual memory of what happened. She remembered the format, and the reference specifically, I think from memory in response to a series of questions from yourself (Day 17/70B D) ---
THE CHAIRMAN: Mr Coonan, I think we might be looking for a break fairly soon as we have been taking your speech in not too long chunks.
MR COONAN: I have one reference I would like to bring to you and then it might be convenient to take a break. I gave you the reference at Day 17/70B D, to the matters which you yourself raised with her. She accepted, although she had no direct memory of the content, that the matters set out at tab (z), page 30, which is Dr Southall’s report, the matters referring to sedation, and so forth. She does not dispute they were mentioned, but in any event she remembers the whole of it being dealt with sensitively as I have said. The reference I would like to give you is a short one at Day 17/71F. The question is put to her at E:
“[Q] Dr Southall say to Mrs M in your presence and hearing words almost precisely to this effect: ‘I put it to you that you killed your son. That you injected him and hung him up and left him to die and then rang for an ambulance’. Did he say that? [A] No.
[Q] Are you sure?
[A] I am sure. I would remember something like that.
[Q] If that had been said by this doctor, what effect would that have had on you?
[A] I would have been surprised, I would have been shocked, I would have been very cross, and I would have spoken to my manager about that.
[Q] Would that have struck you as being unprofessional?
[A] Very.”
At H:
“[Q] Did Dr Southall in any way – in any way – accuse Mrs M of murdering her son.
[A] No.”
Over the page at A:
“[Q] What effect would that have had on you?
[A] I would certainly remember that and I would certainly have had to take that further.”
And her next answer:
“Because that would have been wholly inappropriate.”
She then goes on to deal with some of the other elements which bear on this. Maybe that is a convenient moment?
THE CHAIRMAN: We will take a 20 minute break until 11.10 am.
(The Panel adjourned for a short time)
THE CHAIRMAN: Mr Coonan.
MR COONAN: May I deal with a small but almost freestanding topic which I picked up from Mr Tyson’s address to you the other day in relation to this case.
Mr Tyson developed, forensically, the argument based on the proposition that Dr Southall had set out a challenge, the account given by Mrs M. He drew your attention to a piece of evidence which he told you that Dr Southall had given (Day 12/19C). I do not draw attention to this to tweak my learned friend’s tail, that is not why I am doing it. There is a more serious purpose at heart because Mr Tyson appeared to be suggesting that the starting point was indeed, if you like, Dr Southall’s mind set that he had set out and saw his remit as being a remit to challenge. He took you to this citation. Again, with respect to my learned friend, the citation was incorrect. Can I take you to it at Day 12/19C. If you pick it up between A and B, the question being put is, “What you, [Dr Southall] understood your remit to be against the background of the material”. The answer is a long answer and I pick it up at line 7:
“So the court knew that one of my most important tasks was to try and either rule out or rule in that possibility, and all of this is to go towards the safety of M2. In order to do that my normal way of doing it is to forensically analyse the data I am provided with and sometimes, not always, to interview the parents, some times the child, and then to produce a final report for the court.”
Again, of itself a small point, but my learned friend told you that the quote read “forensically challenge”. He sought to build an argument upon a perceived starting point. But Dr Southall did not say that, he said “forensically analyse”. We suggest that is what Dr Southall was doing, he was forensically analysing the position.
We move to another freestanding point, a matter which may be of some importance in assessing what was going on in this interview and what the effect was at the time on Mrs M. I am going to turn to the subject of crying. Mrs M told you (Day 2/36E 37C and Day 2/59G H) and this is my summary, “I was getting really upset during the interview, I was crying, I had a good cry, I had to get tissues out. I had a cry for two to three minutes during the interview, no one gave me any tissues, no one comforted me. There was a pause while I was crying. I cried on my way out.” She cried, and it is my observation to you, Madam, just as she did, you may remember, when she was on the video link, she cried then, too.
Mrs Salem had a wholly different take on this at Day 18/35G 36A. This is my summary – she was adamant that that did not happen, she was sitting right opposite her. If there had been any distress, two things would have happened. Clearly there would have been a pause, but Miss Salem would have made a note, at least in the contact sheets, that there had been that distress. Why, because that is what she is trained to do.
Therefore, you have to ask yourselves the question, quite apart from Miss Salem being supine, was she also hard hearted like that, that she did not in fact intervene and comfort her with any words at all? When you assess Miss Salem, I invite you to the view that the two accounts there are wholly inconsistent and that Miss Salem’s should be preferred, which is a timely introduction to the question, what about Miss Salem, who actually is she?
You know that at the material time she was a social worker, a senior social worker, with experience in child protection. The child protection matters that she had covered included non accidental injury, although not FII Munchausen’s. She was experienced by that stage with working jointly with the police, she had sat in with other paediatricians. She told you that on Day 18/54.
Miss Salem has, you may think, a degree of expertise and had then a degree of expertise which she brought to his hearing. You will have to make your own assessment of her, as you will with other witnesses, and I will come back to that later. You may think she was an impressive witness. She was some two and a half days in the witness box giving her evidence about these extremely important matters. You may also have assessed her in the light of a number of clues to her personality and professional approach to life when she was, on occasion, a little bemused by some of the suggestions being put to her, not least the idea that coming across a case of Munchausen’s, being a new professional experience, of being sexy; rather bemused by that as a professional. Do you remember that being put to her? You may think that she came along here and was trying to do her best to deal with an important matter. We invite you to take the view that this was a woman of some independence and of spirit. She started out by that letter, right at the beginning of the contacts sheets, when she wrote to Dr Southall on 23 January “Dear David” and she explained that to you when she was asked why she wrote ,”Dear David” and she said, in effect, “I did not want to be intimidated by professionals so I was signalling that I was on an equal footing”. She had never met him before by that stage on 23 January.
The second element which demonstrated, we would suggest, her independence was interesting, you may think, because Mr Tyson put to her a proposition drawn from characteristics of Munchausen’s and told her that Dr Southall had accepted the proposition and she said that she did not agree with it actually (Day 18/4G H). Moreover, when the police wanted to take out the emergency protection order seven days earlier, she stood firm. You will see that in the contact sheet at C1, page 375, at the bottom.
Perhaps of greater significance is the other evidence you received that in other interview settings she had and I am going to use this word in its proper sense – challenged other professionals when she had seen matters which, in her opinion, were again “inappropriate”. She had challenged more than one GP, more than one teacher and more than one police officer. I say more than one because she used those in the plural. Not only had she challenged them, but she had taken the matter up to her seniors and ended up, as she put it, “getting rectification”. This is a woman who, with her experience at that time, recognised – and this is a matter I have touched on already – the approach of some professionals who were not as open with either patients or clients, however one wants to call them, on the one hand and yet approved of Dr Southall’s openness and frankness in this case. Frankness of course, as you will readily appreciate, does not approximate to an accusation of murder.
She was also somebody who was self-critical. She told you that she herself should have clarified whose role it was to inform Mrs M that she would be present. The reference for that is day 19/19C. Of course, as she said it was Dr Southall’s interview, and indeed it was. The criticism here, apart from her self critical approach, if indeed there be criticism owed, is against Dr Southall who told you that he did not think it necessary to tell Mrs M that Francine Salem would be present and why. Dr Southall accepted that. This case of course is not about the specific criticism of Dr Southall. It is there to explain, as I have demonstrated, why it may be that Mrs M was discomforted.
Miss Salem, you may think is a person who, as she told you in terms at day 19/28C, has told the truth. After those events of 27 April, she never saw Dr Southall again. That is it. She has come here all those years later to tell you what was in a note and what she remembers. The issue for you in relation to her is did she behave like has been suggested? Why was she supine, complicit, and hard hearted? Does that sit easy with what you have heard and what you have seen of her? Or is she right when she says to you that no such allegation was made?
I turn to the last part of my submissions to you to a section of evidence which is potentially important and it concerns the making of complaints by Mrs M to others. There is a degree of forensic value if there is evidence placed before you of a spontaneous complaint shortly after the events which is in clear terms consistent with the allegation now being made. I anticipate that in due course you will be receiving advice from the learned Legal Assessor about this topic. Our submission on the facts is that there is no such reliable evidence or no such clear consistent evidence consistent with the complaint now being made. Such evidence of complaints to third parties as do exist do not reflect the allegation now being made, but something falling far short of that. In other words, something consistent with a complaint about a perception of an accusation.
I am going to turn to the evidence of the solicitor, Beth Parry. Here – and again I make no apology for this – you have to apply, in effect, the burden and standard of proof to this area of the evidence in order to answer the question: what did Mrs M tell her? What did she tell her on the 27th? What did she tell her on the 28th and what did she tell her on the 29th? So far as the 27th is concerned, which is the same day as the interview, we start by reminding ourselves as to what Mrs M said to you. She said, “I went to see the solicitor and I went with the social worker, the social worker who had taken me to the interview, and I went with my social worker that day, the 27th”. She said, “I was hysterical when I got to the solicitors”. That is day 2/37G. When she was asked by me and it was suggested to her that she had not gone to the solicitor that day, and that all she may have done was to telephone the solicitors, she said she did not just telephone the solicitors (Day 2/40D).
What of the solicitor herself, Miss Parry? She told you that Mrs M did not visit on the 27th, but there is a reference to Mrs M making a telephone call to the solicitors the same day, 27 April. The only reference that we have is in the (gg) section. It may just be helpful if you have (gg) in C1 open in case I need to make a number of references to it. If you turn to page 11, you will see the date of the letter and the reference in it to a telephone call at the bottom of the letter. We do not have any attendance note or record of the content of that telephone call. Miss Parry therefore has to rely on her memory of the content of that phone call. You will bear in mind of course that it is a memory based on the passage of eight years. In Day 7 of the transcript – and again to save time I will give you the references and four citations so you can see how this unfolds. I am picking these out; I do not pretend that there are other matters which you must judge in the round, but these are important for our purposes – she relies on her memory. This is what she said first of all at Day 7/44G:
“... I remember that she was upset and I remember that she was stating the accusations”.
Then on the next page at 45B she said that she was fairly sure that Mrs M complained about Dr Southall accusing her of murder and she recalled that Mrs M was upset in the phone call (Day 7/45F). May I just pause there. There is no dispute that Mrs M was or may have been upset in the phone call. That does not indicate that she was in fact being accused of murder. It is consistent with a perception at most.
To return to Miss Parry, on the next page at Day 7/46 C D she said she had presumed the complaint was made in the phone call. Then later on in the same page, at 46D E, she says she cannot be sure of the terms of the complaint. It resonates, does it not, with the burden and standard of proof. We say that it is not surprising that Miss Parry cannot be sure because of the simple passage of time and because, as we will see, at some stage she did receive an allegation, the precise terms of which remain to be seen, but she did receive an allegation. The difficulty is trying to extract the precise time that she was giving evidence of an accusation from the telescoping of events over the years.
Then on Day 7/45E, her attention was drawn to her witness statement on 31 July 2006 – that is the same year as she was giving her evidence. If you subsequently read the passages at 45E to 46B, the witness statement was taken at a time when she did not have the file available to her - so she was being asked on a pure test of memory which, for present purposes, you may think is a good test - and in that witness statement you will see that there is an absence of any allegation being made on that day. Again, please read that passage as a whole and you will see exactly what I am saying which allows me to submit that when you look at the material available to you for the 27th, there is no evidence of any evidential value which supports the proposition that Mrs M was complaining to Miss Parry that Dr Southall had actually accused her of murder.
What about the 28th? The only thing we have available for the 28th again is a letter. That you will see in tab (gg) at page 12. There is no attendance note here of this telephone call. You will see in the first line a reference to what must be a second telephone call. It is puzzling, you may think, that if Dr Southall had made an accusation of murder against her, again, there is no attendance note of that fact. It is equally interesting that it is in the body of the letter that it is the solicitor who was suggesting that an appointment should be made. We say all of these matters are, at the very highest, consistent with the fact that if Mrs M complained about anything, she had complained in rather nebulous terms about her perception and about the fact that she was unhappy with the interview, as indeed she must have been. I do not want to go over old ground, but she was unhappy for a whole host of reasons.
Furthermore, it is interesting is it not that that letter - which we submit is unlikely to have been dictated prior to the 27th as Beth Parry suggested it might have been, and she suggested that at day 7/53D – was unlikely to have been dictated prior to the 27th because Mrs M would have had no need and no basis for asking for those documents because she did not have the interview until the 27th. It must have been, you may think, dictated in response to a specific request for documents on or after the 27th. If a note can be made capturing a request for documents, you would think would you not that if there was a complaint being made of an accusation of murder that would be captured, but it is not.
There is an observation made by Beth Parry on page 53 of Day 7 which, in our submission, bearing in mind the passage of time, encapsulates the entirety of it. I quote her. She agreed that there is an awful lot of speculation about this, and it was a comment specifically made in the context of the letter on page 12. It is a comment, we say, which applies to the totality of this (Day 7/53F to H).
So much, although not quite so much, for the 28th, because you will remember, and we will come to it in a minute or two, it was the same day as Dr Alison Corfield saw
Mrs M. A useful forensic device would be – and we come to it – to check from another angle what it was that Mrs M was saying on that day. But, rather than interrupt the flow from Miss Parry’s point of view, let us move on to the 29th, because on the evidence this is the first time that Mrs M goes to see Miss Parry, despite what her, Mrs M’s, initial stance on this was. You may think the only reliable evidence is the first visit was on the 29th and it is the first visit upon which there is an attendance note and it is the first visit, obviously, in which Beth Parry is able to capture in writing anything that
Mrs M is saying to her.
The first observation, and I do not lose sight of this, is that Beth Parry told you that
Mrs M was upset. Again, we do not disagree. She would have had a whole host of reasons for being upset in any event, but the significance of this visit is really in one particular point that I make. I set the scene by reminding you that in tab (gg) at pages 13 to 15 is her handwritten note that she makes when the client, Mrs M, is there in front of her. The typed note she made is at pages 16 to 18 and she explained the mechanism, one which is known the world over by solicitors. You flesh out the attendance note in a rather fuller note and it is typed. That is tab (gg), as I say, pages 16 to 18.
The point that I seek to make, which is a point which was developed with Mrs M in cross-examination, was quite simple. If you look carefully at pages 13 to 15 of the written note you will see – and I apologise for the alliteration; it is intentional – it captures the conditionals. It captures the conditionals. By that I mean the word “if”, “if.” It is the expression of that which is, we say, precisely a reflection of the exercise that Dr Southall was engaged in – scenarios, hypotheses, if, if. Beth Parry has got it.
It is fortunate in many ways that she retained the initial handwritten note, because if you look at the typescript the conditionals have disappeared. Beth Parry was not to know that so much might turn on this so I am going to absolve her of criticism, but the plain fact is that I do no more than invite your consideration of the handwritten note. I am in no position to go behind it, it is there, it speaks for itself, but I do put it a slightly different way. If Mrs M had then in fact been speaking to Beth Parry across the table in the solicitor’s office that afternoon and had said in terms, “Dr Southall accused me of murder as follows: I put it to you … I put it to you …”, etc., etc., if that had been said to Miss Parry, you would expect that to be in the handwritten note, would you not? It is a simple yet powerful point.
Also on the 29th from yet another angle we know that Mrs M not only went to see the solicitor, but she also had a telephone call with the social worker. This is a document which was produced by Miss Salem from the contact file and it is in the defence bundle at D21. May I ask you, please, just to refresh your memory by looking at it.
MR TYSON: Tab (k) is typed.
MR COONAN: I am sorry, it is not tab (k), it is tab (j). It is a telephone call because we can see from the top left-hand corner the social worker in question is one
Ruth Williams. The first few lines do not matter for my purposes. The second paragraph is relevant:
“Discussed [Mrs M’s] visit to see Professor Southall & she stated it was not nice & she had a good cry afterwards, she felt like saying ‘you bastard’ & that she was made to feel like a criminal. [Mrs M] went on to say it was obvious Professor Southall didn’t give a shit what [she] said & that he would write what he wanted anyway. He’d already made up his mind. Whereas [Mrs M] felt comfortable with Dora not Professor Southall.”
These notes, as you have heard, are part of a system and made contemporaneously and
I rely on the words for their full terms and effect. They are consistent with the conditionals uttered on the same day, in our submission, to Beth Parry. So much for the 29th.
We come finally, so far as Miss Parry is concerned, to 3 June, and in tab (gg) to pages 29 and 31, although we can pick it up at page 28. It is the handwritten document, the attendance note, and then at pages 30 to 32 is the typed version. This relates to
3 June. The handwritten note, of course, is not dated on its top, but we heard evidence that that related to 3 June and I do not dispute that. That could be written on the top. Immediately you will appreciate that there has now been a four-week gap. It is page 28.
THE LEGAL ASSESSOR: At tab (gg)?
MR COONAN: Yes. Do you have that?
THE LEGAL ASSESSOR: I think we had this problem before. I do not know what happened numbering.
THE CHAIRMAN: I have it, Mr Coonan, so I am not sure if there is a difference between the bundles. I have certainly got pages 27 to 32 behind tab (gg).
MR COONAN: Yes. Miss Parry was certainly taken to this material both in longhand and typescript form. I do not know whether Mr Tyson can help.
MR TYSON: I confirm exactly what my learned friend said. It was brought into the bundles but I seem to remember there was rather an amount of rolling discovery, if
I can put it that way, and matters came into the bundles at various stages in the course of the last year’s hearing. It should be, and I confirm, that you ought to have pages
27 to 32 in this and I can have those pages photocopied for you now if you would like.
MR COONAN: Certainly from my bundle that I have been working on, page 28 and 29 are two pages of handwritten notes by Beth Parry, beginning with item 1, which begins “The belt description …”. This is under tab (gg), Mr Simanowitz.
MR SIMANOWITZ: I have it under tab (aa).
MR COONAN: I know, and I think Mr Tyson can confirm, there was some removing of documents. Again, it is Mr Tyson’s management of this, and I think it was sensible to put the unamended copy of Francine Salem’s typed note in tab (gg) and the annotated version of the typed note went into tab (aa).
MR SIMANOWITZ: My page 28 under tab (aa) starts, “(1) The belt description …”. Is that correct?
THE LEGAL ASSESSOR: So does mine.
THE CHAIRMAN: It is possible that material was accidentally moved then.
MR COONAN: My bundle is ordered in the same way as Mr Tyson’s.
THE LEGAL ASSESSOR: I shall re-order my bundle in that case.
MR McFARLANE: What was the number of the last page in tab (gg)?
MR TYSON: The last page in tab (gg) is 32, and so if you do not have page 27 to 32 in tab (gg) you may find it at the back of tab (aa), and if it is at the back of tab (aa) could you take it out of tab (aa) and put it into tab (gg).
MR COONAN: I respectfully agree.
THE LEGAL ASSESSOR: I rather recall we discussed that at the time, but some of us may not actually have done it.
MR COONAN: Madam, can I just ask a question through you? I need to be sure in my own mind that when I have been addressing you as I have in relation to the material concerning 28 April (and I have been referring to tab (gg) page 12, pages 13 to 15 and pages 16 to 18) that those are indeed in your bundle at tab (gg)?
THE CHAIRMAN: Yes.
MR COONAN: With that sorted out, can I just bring myself back to this short point that I make about this? I am focusing primarily on the handwritten note now in tab (gg). At the top, in case it has not already been done (because there is no date on it) could I invite you to put “3 June.” There is no dispute about it. It is a four-week gap. It was my phrase, and it may or may not be of use to you, but I suggested you have to consider the effects of fermentation as part of a mental process between that which we know has been recorded on 29 April, and now, which we see recorded on 3 June.
Quite apart from the passage of time there are two other elements which bear on your judgement of what the 3 June material tells you. The first is that Mrs M and her solicitors have by this stage received Francine Salem’s typed note and she made the annotations on the typed note – and this is a most important point – only on 3 June. She did not make the annotations on any of the days in April. We know that she has got the typed note because you can see that at tab (gg), page 22. She has received it on 18 May. It is the letter from the solicitor enclosing a copy of the social worker, Francine Salem’s, notes. So she has got that.
She has also got Dr Southall’s report and this is Dr Southall’s report at tab (z) in your bundle. She has now got it and you know that she has got it if you look at page 29. Half-way down the page:
“Re Southall’s report – she didn’t like it.”
The other piece to fit into the mosaic is that she has already made a complaint about Francine Salem to the social services legal department and she made that on 6 May 1998 at tab (gg), page 19.
Thus far, when you are considering the forensic value to be attached to the evidence of complaints to third parties, the evidence appears to fall into two categories. First, the 27th, 28th, 29th April category and then four weeks later, 3 June. It may be an obvious comment to make, but the longer the passage of time between complaints, the less the forensic value you can glean from it, particularly, since the nature of this exercise requires you to consider, as I said in introducing this topic, whether there is reliable evidence which is consistent with the allegations now being made.
Our submission to you is that the only real evidence of that arises on 3 June. Even then you have to look carefully at the terms in which it was made. It comes nowhere near, we would say, the consistency between an allegation now being made and that which appears in the material on the 27th, which is, we say, zero, 28th pretty zero and 29th we get the manifestations of the conditionals.
I turn finally to Dr Corfield on the 28th. The question for you, may be, quite apart from the unsatisfactory state of the evidence in relation to Beth Parry on the 28th, does Dr Corfield’s evidence shed any further light on it? Again you have, have you not, to apply the burden and standard of proof to this element in answering the question, what did Mrs M tell Dr Corfield on the 28th?
I remind you, in case reminding is necessary, that Mr Tyson quite rightly told you that there is no doubt that the consultation with Dr Corfield was on the 28th. Again
I emphasise that because there appears to have been a slightly ambiguous date in some of the documentation and it is right that you should be warned not to be misled by that. We are agreed it was on the 28th.
You will see Dr Corfield’s note at tab (ee), pages 1 and 2, and it is the last ten lines or so of page 2 in (ee) which are highly relevant. I invite you to consider the content of that note in the light of a number of citations I shall give you. Dr Corfield wrote a report which is at the next tab, (ff). The relevant passage is on page 2 in the penultimate paragraph:
“[Mrs M] told me that she had seen Professor Southall and she had found this interview difficult and disturbing.”
Again, we do not dispute that; no doubt it was. The obvious observation to make as a starting point in relation to Dr Corfield’s note at (ee), as well as the content of the report at (ff), in so far as it bears on the problem you have to grapple with, is that it is sparse in the extreme. The note is wholly consistent – and I am looking particularly at the third line from the bottom – with what our position is on behalf of Dr Southall, and is wholly consistent with what we say she told Miss Parry the next day on the 29th, the conditionals on the 29th. Here it is a feeling.
I recognise, as I am sure the Panel would, that there may be, from the standpoint of a person on the receiving end, a fine line between a frank allegation of murder and the approach to laying out scenarios. In psychological terms there may be a fine line, but there may not be a fine line on the part of the speaker, there may be a very clear distinction on behalf of the speaker. As I said right from the beginning, this Panel is not concerned with subjective effects, it is concerned with assessing whether a frank allegation of murder was made.
Therefore, when one looks at Dr Corfield’s note, it is important to bear that in mind and then to consider two things: one is that Dr Corfield’s note was made some eight years before she gave evidence. She answered a number of questions about the circumstances that she could, or may, remember about the note and about the audience she had with Mrs M on the 28th.
Perhaps I could be forgiven for drawing your attention to a number of passages in Dr Corfield’s evidence. It is Day 2. It is a process which you will obviously have to adopt for yourselves, but I invite you to read the totality of the evidence. I am going to draw attention to a number of the high points of this evidence because we would say it supports Dr Southall’s position entirely. I can pick it up towards the bottom of page 71E. She says, “I have an independent recollection...”
“... because it was a very exceptional case ... I have always remembered the case, because it was complex and obviously quite exceptional in its content.”
At G:
“I do have a picture in my mind of Mrs M talking to me about it.”
If you turn to page 73G:
“There was a social worker present during the interview called Francine Salem…”
Pausing there, this is recall from the note because the question was, “How does the note go?” and she said:
“There was a social worker present called Francine Salem, who was the social worker who was involved in the case in Shropshire. Mrs M told me that she found the interview very upsetting and I think I put it in her own words, ‘offensive’.”
That word appears in her note, with Dr Corfield’s note.
“She elaborated on that by giving me an idea...”
I draw attention to that:
“... of some of the questions that she told me Professor Southall had asked her, things that he had talked about. I put in quotation marks, because I believed this is what she said and why I recorded it like that, that ‘they had not done toxicology’, meaning on her eldest son’s body and that it was ‘quite possible that [she] had drugged him first’. She told me that she felt...”
I draw attention to that:
“... accused of killing the elder boy and that she had been expecting the interview to focus on the youngest son and the issues round Munchausen’s by proxy, but that its not how she saw the interview proceeding.”
At B:
“I think she was upset and she was also quite shocked and taken aback.”
The next answer:
“I recall that she said that a lot of the questions centred around the death of the oldest boy and they...”
and I emphasise this next phrase:
“... they seemed to imply that she might have killed him herself, that the questions were perhaps testing that hypothesis.”
This is Dr Corfield and I rely on the whole of that answer:
“[Q] I recall she also told me that Professor Southall had suggested there needed to be further police investigations.
[Q] You used the word ‘testing the hypothesis’. Are those your words or your recollection of her words?
[A] That is my interpretation.”
The next but one question:
“[Q] When you have recorded the words that she found it ‘offensive and upsetting’, were those her words or your words?
[A] I would say those were my words.”
That was all in chief. On page 76B C, she indicates that the notes were not verbatim. She said at D:
“It is probably a mixture of obviously my interpretation of things that I have quoted them as saying and a few things when I have written it in quotation marks which I would believe to be verbatim.”
She sets out at E to F, and again I draw attention to, but in passing, how angry Mrs M was with social services. I have drawn attention to that already and also at the top of page 77 to the same effect. I take you down to 77F.
“[Q] The picture is this, is it, that as you have recorded at the bottom of your note that Mrs M ‘felt’, and I emphasise the word ‘felt’, that she had been accused of killing the eldest child?
[A] Yes.
[Q] You said again a few minutes ago in answer to questions from Mr Tyson that she had been asked a lot of questions centred around the eldest boy that seemed to imply that she was responsible. Do you see?
[A] I see, yes.
[Q] That was your strong impression, was it, that she was saying to you that the implication of what Professor Southall was saying was, in effect, that she was responsible for his death?
[A] I think that was the implication as she saw it, yes.”
Over the over the page at 78A:
“[Q] You remember, do you not, she in effect saying to you, or at least this was your impression, that Professor Southall had been in effect testing or putting forward a number of hypotheses.
[A] I think that was my way of putting it.”
Between C and D:
“I thought she interpreted it as him saying to her, ‘You could have killed him’, perhaps not that ‘You did kill him’ but that ‘You could have killed him”, and these are subsidiary questions around that.”
Just before E:
“[Q] But at no stage did she say that Dr Southall had in fact accused her of murdering this child?
[A] I would have to say that she did not say those words.
[Q] If Mrs M had said to you in terms that Dr Southall had in fact accused her of murdering her eldest son, you would have been startled, would you not?
[A] I would have been.
[Q] You would have made a note about it?
[A] She may well have felt that that was said to her. I was looking at it that he was testing hypotheses ... in a forceful manner.”
At G the allegation is then put to her, the terms of it:
“[Q] You would have noted it, would you not?
[A] I think I would.
[Q] But she did not say that, did she?
[A] No, I recorded that she felt accused of killing him.”
Then page 79 in re examination, between C and D:
“[Q] She did feel that she had been accused of killing?
[A] She did.”
Then there were questions by the Panel. I draw attention to an answer at the bottom of page 80G H, a question asked by Dr Sarkar:
“[Q] Did you at any point contemplate asking others involved in the case, like a social worker or the court, permission to speak to Professor Southall to clarify if this was the case.
[A] No, I did not.”
The reference to this “if this was the case”, is a reference back into the question of the terms of the accusation now being presently made. I take you to page 82 at the top at A:
“I think if something particularly significant is said, you would try to record that verbatim. Also, it is encapsulating the point that you wanted to make overall, so I think that the quotes that I put down there encapsulated the idea of Mrs M’s view that she had been accused of killing the boy.”
At C, and I do this for completeness:
“I think her words would have been, ‘He accused me of killing the boy’, and
I would have written, ‘She felt accused of killing him’.”
At D:
“I think beyond what I put in the quotation marks, I cannot say exactly what words she used.”
At F:
“[Q] Dr Corfield, a few minutes ago, in answer to questions by the Chair of the panel, you said, can I suggest for the first time, that her, Mrs M’s, words would have been that Dr Southall accused her of killing him?
[A] Yes.
[Q] Would have been?
[A] Yes.
[Q] We have to be very careful, do we not, about a witness such as you who is called primarily to give evidence as to what was recorded at the time, as you have done, and then overlaying it, eight years later, with the patina of reconstruction, have we not?
[A] Indeed.
[Q] So to say, as you said a few minutes ago, that Mrs M would have said that is speculative at best, is it not?
[A] I cannot say that she definitely said that, no.”
[Q] In other words, you cannot be sure that she said that?
[A] I cannot be sure she said that.”
At the bottom of page 83, at H,
“[Q] The point I want to explore with you is that if there had been a stark allegation made about one of the experts in the case and she had denied it, then you would have recorded that, surely.
[A] I agree I could have expanded on it on page 2, but I made a brief comment about it”.
Then on page 84 between B and C,
“[A] You said that Mrs M had said that Professor Southall had accused her of telling the boy and I think we had agreed that the interpretation was that she hat felt accused”.
Then I drop down one next question at F,
“[Q] But if she had said in terms that Dr Southall had accused her of killing the child, is that something that you would have put into the report?
[A] I think that would be something that I would have discussed more widely.
[Q] Yes, you would have discussed it more widely with those involved in this forensic process, would you not?
[A] I think I would.
[Q] And you would have drawn it to the attention of His Honour Judge Tonking in your report, would you not?
[A] I might well have done that”.
Then in further re examination between F and G on page 84:
“[Q] My simple question is this. To the best of your recollection, were those the words that she used to you?
[A] I said they would have been and I think that must imply that no, I cannot say that for sure.
[Q] But why do you think they would have been?
[A] Because I wrote down that she felt accused of that, and I was trying to interpret why I would have written that down. My own ideas about that are that it would have been because that is what she would have said to me, but I cannot say it absolutely for sure because I cannot remember that it was”.
Then finally on page 85 A to B,
“[Q] ... I wrote down that she felt accused by him. I do believe that to be the case. By that I mean I think, if asked, she would say that is how it came across to her, but I cannot remember her saying those words”.
I hope that is a fair summary of a great deal of Dr Corfield’s evidence delivered now nearly twelve months ago. Those answers that she gave we rely on. We say that if one is looking for two things, first of all, if you are looking for forensic value in establishing consistency between the allegation now being made and that complaint being made on 28 April, only the following day, that you do not and cannot derive that necessary forensic value. You derive other things, but not support for the proposition that is now advanced.
I turn to my final word about Mrs M. There is no doubt that the subject matter of murder was raised, no doubt at all, and there is no doubt on the basis that we have Francine Salem’s note, and indeed Dr Southall’s report, that the elements of the three scenarios was raised. The question is how it was raised. The question is whether it was simply raised, whether it was gone through as a series of hypothesises or may have been, or whether it was the other side of the divide, not judged according by what Mrs M felt, but by what Dr Southall actually accused her of. That is the nature of the task that you have to grapple with. Our submission compendiously is that the evidence is not sufficient for you to find proved this very serious allegation made some nine years ago now. Madam, those complete my submissions in respect of Mrs M.
I have three matters of housekeeping to deal with. The first is that in terms of the case as a whole and these observations are not made in respect of Mrs M you will have to deal with and make an assessment of the evidence in relation to a significant number of witnesses, one of whom, and only one of whom, in effect, is Dr Southall. Therefore, you are going have to assess their performance in the witness box. I appreciate that for some of them it was twelve months ago, so therein lies a problem we all, recognise, but you will have to overcome that. It is an assessment primarily so far as Dr Southall is concerned based upon what he said about what he was doing or not doing in relation to these events and the reasons he has put forward and also your assessment of his demeanour as to whether he was trying to help or not. Do not rely upon observations that I make about him because they are worthless. You must actually make your own assessment of him, just as you will with the other witnesses. That is the first point.
The second matter is a technical matter which my learned friend and I addressed during the coffee break. We both have egg on our faces – I hope Mr Tyson forgives me for saying that – but I started my submissions off in relation to Mrs M by drawing your attention to head 18(b). I told you with all the confidence I could muster that it did not actually apply to Mrs M because of the effect of the EPO. In other words, she was not at the material time acting with parental responsibility. As a matter of law, once an EPO is in force, that is absolutely right.
The difficulty is, as Mr Tyson discovered during the course of my speech, the EPO lapsed and it had lapsed by the time of the interview, so I had overlooked that. When Mr Tyson got to his feet at the beginning of my submissions and enthusiastically embraced the observation I was making, he was wrong too, but he put it right because he realised during the coffee break and I am more than happy to withdraw the observation that I did because it is plain wrong. The fact is that Mrs M did have parental responsibility at the material time. In case you need further technical information, the EPO lapses after seven days, and so you have to go back to renew the EPO or you go down the route of applying for an interim care order. It would appear that is what they did. The main point is that it had lapsed, so I withdraw my observation made earlier, and I have no doubt Mr Tyson wishes to withdraw his association with those observations.
MR TYSON: Madam, that is right and I accept the joint bit of egg here! The EPO lapsed on 6 February. An interim care order was applied for on 3 February in order to deal with the lapse, but the interim care order itself was not granted by His Honour Judge Tonking in March and, therefore, by April the parental responsibility had returned back to the mother. It was right as initially drafted and I was wrong to adopt my learned friend’s suggestion, but we are all friends again now and 18(b) should remain as it always was.
MR COONAN: The second matter is this: yesterday when I was dealing with Mrs H and, in particular, with head 9(b), you will remember it was the occasion when I put in document D23 which was the head note of the case D v East Berkshire Community NHS Trust. May I just return to this topic because by the time it got to ten to four last evening my own concentration was beginning to wander and I am not sure that
I provided the assistance that I should have done. I confess that I was a little tired by ten to four.
Can I just go back to the position not on the facts, but in relation to your approach to this topic of breach of confidence. The head note in the case that I put in at D23 simply sets out the legal position in relation to the existence or otherwise of a duty of care of common law owed by a paediatrician on the one hand to the child and on the other hand to the parent. The case holds that there is no duty of care in those circumstances owed to the parent because one of the underpinning rationales, as you will see in the head note, is that the paramountcy of the interest of the child and that the doctor should be permitted to act with single mindedness to pursue the perception of what the child’s interests are and in so far as damage is caused to the parent in the process, the parent has no cause of action. That is the legal position.
Where I should have clarified the position, and I failed to do so and want to do it now, is of course one has to be careful about eliding legal duties and professional duties, and
I do not seek to do that. What I have said here is that Dr Southall, in acting in relation to a named paediatrician, Dr Weaver, would have been entitled to do as he did vis a vis her because of his perception of the interests of the child from a professional conduct standpoint. If, as a consequence, the parents’ – in this case the mother’s – confidence, which had arisen by virtue of the fact that she had parental responsibility for the child, as a parent, was breached, then that is a necessary result of acting in pursuance of protecting the interests of the child. That is the proposition to a known paediatrician. It would then have to be a matter of judgment as to whether a proposition is made good on the facts.
The next step is to then see the extent to which that proposition which I have advanced can apply if the letter is sent to an unnamed paediatrician. The issue then would be whether the doctor, in seeking as he saw it to be single minded and protect the interests of the child, albeit sending a letter to an unnamed paediatrician, if in the circumstances the mother’s confidence, because of matters shared with the doctors, is then breached, then I would submit it is a question of whether you agree or not that by parity of reasoning that the mother’s confidence being breached in that way would not form the subject matter of a finding of misconduct in principle. It would be a natural result from taking the step in the first place. As I say, that is a matter at issue which relies behind head 9(b).
The backdrop to what I have been saying and again I did not address the question last night is of course the Blue Book for 1989 and Mr Tyson took you to that. The relevant section begins on page 19 of C23 under the heading of “Professional confidence”.
Mr Tyson took you to page 12. Mr Tyson has addressed you on that and I take that as read. I want to draw attention to page 19 and the paragraphs there. The ultimate issue appears to be encapsulated in 81G on page 20. This concerned – and was the approach of the General Medical Council at that time – with disclosure and for a doctor to be able to justify disclosures on the ground that it is in the public interest, which in certain circumstances, as paragraph G then says, circumstances such as, for example, investigations by the police of a grave or very serious crime might override the doctor’s duty to maintain his patients’ confidence. That primarily is concerned with breaching the patient’s confidence.
What I am submitting here is that the doctor on the facts, if a letter was sent to an unnamed paediatrician, was justified in doing that because of the nature and basis of his concerns, so he would be asking you, as I do, to take the view that that was in fact justified, but that if in doing so, the mother’s confidence, because of material which she had disclosed, if that be the case, there is a consequential result which he can indirectly justify for the same reasoning. That is the way that we put it. In either case, whether it is sending to a named or unnamed paediatrician, from the standpoint of the professional duty of confidence, there is the underlying public interest in preventing injury or harm to the child and that is the other relevance of the head note of C23 C and D. It simply emphasises the fact that there must always be a prevailing public interest in preventing crime and in preventing harm to a child.
That being the case, there may be unfortunate side consequences, but that is simply a result one has to live with if I can put it that way. That is the basis, therefore, upon which again on the basis that the document was sent, the that Dr Southall would seek to justify it being sent in that way. I hope that clarifies my position. Again, I apologise if
I did not come across as well as I ought to have done last evening.
Madam, the final matter I want to deal with is during the course of my submissions to you on Monday morning I mentioned what was called the old agenda which you indicated you had, but I am not sure that other members of the Panel had retained them. I was drawing attention to it for this reason: the old agenda contained the references to the infant activity logs and the TcPCO2 charts and the cardio respiratory charts, all original medical records which initially were the subject of charge. They ended up being deleted on the basis that the data and information in them were in the main file.
That is what I was reminding ourselves about. What I would like to do, so that you are, as it were, simply hanging on my words rather than actually having the document, is to have that provided to you. I know that the Panel Secretary does have copies of it and for my purposes I am simply asking the Panel to remind themselves of the original case by looking at Appendix 1 in particular.
THE CHAIRMAN: Are there members of the Panel who do not have this? I have a copy.
MR COONAN: Could I have a word with my learned friend just for one moment? (Counsel conferred)
I am sorry, madam. We have sorted that out. Could I invite you just to receive it? You will remember, by way of background, what I said to you on Monday morning, that these are, on any view, original medical records and they are not the subject of any charge before you now. You can look at Child A, Child B, and there is a reference also to Child H and cardiorespiratory charts, TcPO2 charts and an Infant Data Form.
Madam, that is the purpose for which I draw attention to it at this stage, just to link in with what I said earlier to you on Monday morning. I did not have a copy of the document available when I was making these observations.
THE CHAIRMAN: It turns out that in practice everybody but one member of the Panel had it anyway.
MR COONAN: There we are. I am grateful. Madam, those complete the submissions that I make in this case.
THE CHAIRMAN: Mr Tyson, do you have a matter to raise?
MR TYSON: Just a housekeeping matter, madam. I make no submissions, as I might have done otherwise, on the law concerning the duty of confidence.
As far as head of charge 9(b) was concerned, I was concerned that my learned friend might be making a bad point in law. I am no longer concerned that he is making a bad point in law about that. I do not agree with his interpretation of it, but that is a matter for you, but at least he has not got the law completely wrong, if I can put it that way, in relation to where the duty of care is, on one side, and the duty of confidence on the other side. It is not an easy one. I was unhappy with the way my learned friend put it as a matter of law last night and I am much happier now as to the way he put it, so I draw a line under that. Let me put it that way.
Secondly, you asked me to produce my bullet points from my submissions. I have those bullet points and I kept them, at my learned friend’s request, away from you at the time when he was giving his submissions, but they are here. There are quite a lot of bullets; it seems I had quite an ammunition belt of bullets. Here they are, and I would invite you to receive them as they were prepared at your request. I say formally that, notwithstanding the fact that these bullet points were not immediately ready the moment I sat down from my closing speech, they are derived entirely from my closing speech and have not incorporated any of my learned friend’s closing speech. In fact, they were completed when he had only done about half a day of his closing speech in any event, so this is a loyal document setting out my closing speech in bullet points, which you wanted.
THE CHAIRMAN: Thank you. That will be C24. I see Mr Coonan is rising. I was about to ask whether he was producing a similar document.
MR COONAN: Madam, I have not had the time available, frankly, to produce one. My learned friend has been tapping away whilst I have been speaking. I am a little unhappy about this. It is unusual for a document to be put in after the defence have made a final speech. I anticipated, I have to say – and I do not want to appear churlish about this – that my learned friend would be putting in his bullet points at the end of his speech on Thursday and certainly before I began my speech, but that is not the case. He was good enough to indicate to me yesterday morning that he had it. I have not actually looked at the content because I had my hands full, but I am just a little concerned at the unusual nature of this, it now being a document which is being handed to you after I have made my submissions. I have to take my learned friend’s word for it that none of the material touches upon anything that I have said. Of course I have to, and I do, but nonetheless it is unusual and ought really to have been handed in before I got to my feet.
THE CHAIRMAN: Has the Legal Assessor a view on this?
THE LEGAL ASSESSOR: It is not wholly clear to me, Mr Coonan, whether you are objecting to it going in or merely complaining about it going in at this stage.
MR COONAN: It is a bit of a complaint. Madam, I am entirely in your hands. If you wish this document to go in then I am not going to object, and I, at least, do not wish to appear churlish and to in any way prevent your proper inquiry and assessment of this case. If you think this document would be helpful then I am not going to object to it, but essentially I think it is a matter for you, because it is somewhat unusual. If you do seek to take it in and give it a C number could I ask you, when you consider it, as you clearly will in those circumstances, to perhaps remind yourselves of the circumstances in which it comes to be produced. I do not want it to be thought that my learned friend is having a second bite of the cherry, if I can put it that way.
THE CHAIRMAN: I turn again to the Legal Assessor to see if he has got any advice, and indeed whether the Panel may have any questions for the Legal Assessor on this matter.
THE LEGAL ASSESSOR: Madam, it was at your invitation that Mr Tyson set about producing his bullet points. Your invitation was issued because quite clearly you felt it might be helpful. As Mr Coonan has said, it is perhaps a little unusual for such a document to be introduced at this stage. It might be helpful, in the circumstances, if
Mr Coonan were to cast his eye over it over the lunchtime adjournment and that may satisfy any fears that he may have.
I merely observe that your object, as I understood it, was that Mr Tyson should provide the bullet points really as a sort of aide mémoire for your purposes. If that is indeed the case and if Mr Coonan, when he has seen this, agrees, then doubtless you will have little difficulty in feeling, if it is going to help you, that you should admit it. If, on the other hand, it goes beyond an aide mémoire, then on the face of it you will probably find it would not be appropriate.
What I would advise at this stage is that Mr Coonan should consider it over the lunchtime adjournment and we should revisit the position after that.
THE CHAIRMAN: Does any member of the Panel wish to ask a question? I saw you possibly indicating, Mr McFarlane.
MR McFARLANE: Thank you, madam Chairman. The point I wanted to make, really in the interests of scrupulous fairness to both sides, was perhaps for two things. First, that Mr Coonan might be invited to make his own list of bullet points which in turn
Mr Tyson could view before being handed out, and similarly, that when we do come to our deliberations we will have the advantage of the transcripts of the whole of
Mr Tyson’s excellent speech and we might be limited by the delay in getting the final part of Mr Coonan’s excellent speech. So, whilst Mr Coonan is making his bullet points, the shorthand writers can be making up the transcript and then we can look at everything in the round with all the bits of paper there. I feel that would be scrupulously fair, if I have not been too complicated or confusing.
THE CHAIRMAN: There is another member of the Panel who wishes to say something.
MR SIMANOWITZ: I simply wanted to say that there perhaps are matters that we need to discuss not in open session and once Mr Coonan has had the opportunity of doing so, and perhaps we get further legal advice, perhaps we should retire to consider it.
THE CHAIRMAN: Can I just say while we are here, Mr Coonan, obviously
Mr McFarlane’s observations included, again, the possibility of whether you wish to put in a document, so I ask you to respond to that.
MR COONAN: There are two aspects. First of all, I think it is probably a good idea that I have a look at Mr Tyson’s document, which I have not had an opportunity of doing although he did offer it to me. Of course, as you appreciate, I have had rather a lot on my mind to deal with in relation to presenting my own submissions and it is for that reason that I did not look at it. I think it would be a good idea, if I may say so, having heard what your learned Legal Assessor says, that I should look at the document over the luncheon adjournment and it may well be that my quasi objection may fall away.
The second aspect is that hearing what Mr McFarlane says, in an ideal world I would jump at it with alacrity, but I do not want to hold up your deliberations. The difficulty is that, as you can appreciate, I have been on my feet now for, in real terms, just shy of two days, and to reduce what I have said to pure bullet points obviously would be a little shorter. I do not know how many pages my learned friend’s bullet points are, but they are certainly not on two sides of paper. What I do not want to do, because it really will take time – and I confess straight away I am not the world’s fastest typist – is, in effect, to be putting in, in written form, that which I have spoken, because it would not be a bullet exercise. I think there is a time element and I do not want to hold you up.
THE CHAIRMAN: Thank you. I think hearing your views on that has helped. We have heard the advice. I think probably the best thing to do would be for you to look at Mr Tyson’s document before it is possibly received by the Panel and then we could be sure whether you do or do not have an objection to it.
MR COONAN: Yes.
THE CHAIRMAN: That may resolve the issue. I agree that I think it would not be perhaps in everyone’s best interests to delay our deliberations unduly at this stage, so we have to be pragmatic on that. Can I say also at this time, of course, we just have to resolve the matter of whether the Panel will receive this document. I assume that that was the last matter then. Were there any other matters at all?
MR COONAN: Madam, I do not think so, but if you are going to permit us to rise now and I can look at the document, I shall remind myself if there is anything else, and I can speak to my instructing solicitor and my junior and see whether there is anything, but
I do not think there is.
THE CHAIRMAN: Did you wish to say something, Mr Tyson?
MR TYSON: I just merely wish to say that when we have dealt with this matter
I know that my learned friend and I and the Legal Assessor were going to have a small little meet to see what the learned Legal Assessor’s advice was going to be.
THE CHAIRMAN: You are pre-empting me, Mr Tyson. Thank you, that is exactly the point I was coming to. The next matter would be the Legal Assessor’s advice and I am aware of the fact that he wishes to have some time before giving the advice in order to,
I think, consult with you as well. It was simply a matter on the housekeeping. It seemed to me that we should perhaps have a longer lunch adjournment to allow that before we come back, so that the Legal Assessor is ready with his advice when we come back. It was merely a matter of finding out how much time would be required. The Legal Assessor is suggesting that he would be ready perhaps at 2.30.
MR COONAN: Thank you, madam.
THE CHAIRMAN: Do you have any comment on that?
MR COONAN: No, and I am sure that is sensible.
THE CHAIRMAN: If we now adjourn till 2.30 we can at that time resolve the matter of Mr Tyson’s document and hopefully the Legal Assessor will be ready to present his advice. Thank you.
(Luncheon Adjournment)
THE CHAIRMAN: Good afternoon. Mr Coonan you were going to tell us your views having seen Mr Tyson’s summary.
MR COONAN: Thank you for the opportunity of doing that. I make two observations: simply that it is twenty four pages long and contains one hundred and twenty nine bullet points, many of which are subdivided and so on. Again I do not say this in a churlish way, but it is a rather lengthier document than I anticipated would be put in in terms of bullet points. It is headed “The Complainants’ Skeletal Closing Submissions”. It is a skeleton argument in all but name.
It seems to me that, ultimately, it is a matter for you whether you wish to receive the document. I can say, because I think it would be unfair to my learned friend if I did not, from my perusal of this document I do not think it includes matters by way of comment on my speech. Indeed, I am fortified in that view because in bullet 119 my learned friend maintains the inaccurately cited reference at Day 12/19B that I referred you to this morning, the reference to “forensically challenge” when the word, the citation, is actually “forensically analyse”. It is repeated in here which, in effect, tends to show, does it not, that my learned friend is not commenting on my speech at all. I make that point simply, as it were, to demonstrate that I do not have a point with my learned friend on that.
Ultimately it is for you. If you would find this helpful, and I am sure my learned friend would urge it upon you, it is for you, but it is a much longer document than I thought it would be.
THE CHAIRMAN: Thank you for those observations, Mr Coonan. I know that the Panel feels that the decision is a matter for the Panel as a whole and not one for me as Chairman. Also, it is very mindful of the fact that it should be seen to be scrupulously fair. I think, perhaps going back to when Mr Tyson began his speech, we possibly imagined we were going to get similar documents from both sides. We are proposing now to go briefly into camera to decide whether we should or should not receive this document. Mr Tyson is rising, so I give you an opportunity to say something further.
MR TYSON: Madam, I am reminded of what was said on Wednesday 14 November at Day 20/1, where I said at 1B:
“Can I say it is my intention to give merely oral submissions, but I can and will, if the Panel like, produce immediately thereafter a little bullet point document.”
I then went on to say that:
“If it would be helpful to the Panel, I am very happy to prepare, after I have finished my submissions, a small bullet point document of what it was that I said, if you can be helped in that way.
[THE CHAIRMAN]: Thank you. I saw nods all round, so I think it would be appreciated, and a summary as well. Obviously, I was asking that because to some extent it affects the level of note taking that the Panel feel they may need to take whilst you are speaking.
[MR TYSON]: You will certainly get a bullet point document.”
So what I was asked to do by you, Madam, was a bullet point document and a summary as well. I have taken my oral submissions and reduced those to bullet points to the best of my ability. I have not taken any cognisance of what my learned friend said and I am grateful to him for accepting that. I prepared it immediately after my submissions, as
I said I would, and here it is as promised and as asked.
I make the subsidiary point and, again, I do not want to raise the temperature too much, but this was a request made by you on 14 November, so my learned friend, clearly, would know on 14 November what was expected of him. He had from 14 November until today to produce a similar document and has chosen for his own reasons not to.
I cannot remember what the date is today, but it appears he has had somewhat like a week to have produced a similar document knowing that that was what the Panel want. He has chosen not to and I submit it would not be unfair for you to receive mine and not his because, as it were, he has had ample opportunity to have done it had he wanted to.
You have asked for it, I have prepared it and I would invite you to receive it. It is important because it may have affected the quality of your note taking, as you indicated when you were making the request. It contains all the references to the transcript which I made in the course of my submissions.
THE CHAIRMAN: Thank you for making those observations from your side. Nevertheless, the Panel does need to make a decision having had these points raised and I know there was some concern to be seen to be completely fair. I will ask the Legal Assessor if he has any further advice for the Panel on this particular matter.
THE LEGAL ASSESSOR: It is entirely a matter for you. You made an invitation and, on the face of it, there is no reason why you should not maintain the invitation or withdraw it. It is entirely for you. I would merely observe that one is looking at fairness to both sides and you will have the advantage of the transcripts which contain counsel’s speeches in their entirety.
THE CHAIRMAN: We will retire for a few minutes to determine whether we should receive the document.
STRANGERS THEN, BY DIRECTION OF THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
THE CHAIRMAN: Thank you for those few minutes. The Panel has decided it would be pleased to accept Mr Tyson’s document in the face of there being no formal objection. It will be C24. I am now going to call on the Legal Assessor to give the Panel his legal advice before we go into camera on the first stage.
THE LEGAL ASSESSOR: It is now for the Panel to determine, as it is required to do under Rule 27(2), which, if any, of the facts alleged in the heads of charge and not admitted have been proved, and whether such matters as have been admitted or proved, would be insufficient to support a finding of serious professional misconduct.
The Panel members are the judges of the facts and also of the law. They must reach their decisions on those facts alleged which have not been admitted, only on the evidence before them. They are entitled to draw inferences from what they have heard, but not to speculate on what other evidence or witnesses might have been called. They have heard all the evidence in the case and there will be no more.
The facts are alleged by the complainants and it is upon those facts, and those facts alone, that the charge of serious professional misconduct is based. It is for the complainants to prove the facts. The burden of proof rests upon the complainants. The doctor does not have to prove anything; in particular he does not have to disprove what is alleged.
In this context, although it is suggested by Mr Tyson that there are witnesses who could have been called on behalf of the doctor and about whose absence he has made some adverse comment, this should be disregarded. This is because, as I have said, the burden of proof rests fairly and squarely upon the complainants.
Mr Coonan has contended that it is, as he puts it, amazing that certain evidence has not been adduced by the complainants. The relevance of this to the Panel’s deliberations is to the question of whether, on the evidence before it, the complainants have discharged the burden of proof.
As to the standard of proof, before the Panel Members can find a fact proved, they must be satisfied so that they feel sure that it is proved; nothing else is good enough.
The Panel should consider each of the facts alleged separately; the evidence is different. Although some of the evidence may relate to more than one allegation, the decision need not be the same on each.
It is important to remember that the fact that some allegations have been admitted does not mean that those in issue are made out. They must be addressed in the light of the evidence relevant to them.
The evidence upon which the Panel members must reach their findings is what they have heard in the course of the hearing and what they have seen by way of documents.
The Panel members must consider all the evidence before them, remembering that they can accept part of what a witness says and reject other parts.
The Panel is concerned with events which took place a long time ago. Members will appreciate that because of this, there may be a danger of real prejudice to the doctor. This possibility must be in their minds when deciding whether they are sure that a fact have been made out. They must make allowance for the fact that with the passage of time memories fade. Witnesses cannot be expected to remember with crystal clarity events which happened many years ago. The passage of time may even play tricks on the memory. The Panel should make allowances for the fact that the longer the time that has elapsed since an alleged incident, the more difficult it may be for the doctor to answer it. The Panel should consider whether the passage of time has put the doctor at a real disadvantage in putting his case. If he has been, then this is something to put in the balance when deciding whether the facts alleged are proved.
The Panel has had the benefit of expert evidence from Professor David. Expert evidence is adduced to provide the Panel with information and opinion which is within the witness’s expertise, but is likely to be outside the Panel’s experience and knowledge. A witness called as an expert is entitled to express his opinion on the matters put to him. Panel members should bear in mind that if, having considered the evidence of an expert, they do not accept it or any part of it, even when unchallenged, they do not have to rely upon it. However, members will doubtless wish to have regard to the expert evidence when coming to their conclusions. They should, however, remember that the expert evidence is a part of the evidence and should be considered together with all the other evidence in the case.
There is of course no obligation upon the doctor call expert evidence; it should not in any way be held against him that he has not done so.
A particular matter of evidence arises in regard to head of charge 5(b), the allegation arising from Mrs M’s interview with the doctor on 27 April 1998. It is contended by the complainant that later on 27 April 1998, the day of the interview, again two days later, on 29 April 1998, and also on 3 June 1998, Mrs M saw her solicitor. It is further contended that she saw Dr Corfield on 28 April 1998. The complainant’s case is that at each of these meetings she said that she had been accused by the doctor of murdering her child. It is contended that on each occasion what Mrs M said amounted to a recent complaint. A recent complaint is admissible to show consistency with evidence subsequently given by the witness, in this case Mrs M, and also as evidence of the truth of the complaint. It is for the Panel to consider whether what was said by Mrs M in the course of these meetings is consistent with her evidence at this hearing and whether it can assist the Panel in deciding whether her evidence can be accepted.
When considering head of charge 9(b) the Panel members should have in mind that their attention has been drawn to a decision of the House of Lords in D v East Berkshire Community NHS Trust & Others [2005] UKHL 23. This decision emphasises that in cases involving child protection, the interests of the child are paramount and that if as a consequence there is some damage to the interests of the parents, no cause of action in negligence arises as there is no duty of care owed to the parents. This principle is the context in which the 1989 Blue Book provisions must be set. The relevant passages in the Blue Book for the Panel to consider and decide the extent to which they apply are paragraphs 47, 48a, 79, 80, 81 and 82.
It is not in dispute that the doctor was entitled to send a copy of the Dinwiddie letter to Dr Weaver, a named paediatrician. The question is whether he would be entitled to send a copy to an unnamed paediatrician. It is a question of fact for the Panel to decide whether, if indeed a copy was sent, the doctor would in the circumstances be justified in doing so.
The Panel has heard that in about 2000 in inquiry was set in hand by the North Staffordshire Hospital Trust and that in the course of it the doctor was suspended. This is something which the Panel should disregard. It is irrelevant to their task in these proceedings. The Panel is concerned only with the allegations in the heads of charge and the evidence before it.
When the Panel members have reached their decisions on those matters alleged, which remain in issue, they should then consider whether the facts admitted or found proved would be insufficient to support a finding of serious professional misconduct. If they do not make the latter finding, it would be necessary to proceed to the second stage, namely that provided in Rule 282(ii).
I advise the Panel that serious professional misconduct is conduct which by omission or commission falls well short of the standards expected of registered medical practitioner, and that such falling short must be serious – indeed sufficiently serious to attract the opprobrium that is attached to a disciplinary offence.
There are of course a number of allegations relating to several matters. It is not necessary that every one of the allegations is proved in order that serious professional misconduct can be made out. It is for the Panel to decide whether those that are admitted or proved, individually or cumulatively, could amount to serious professional misconduct. It follows that although individual facts may not in themselves amount to serious professional misconduct, cumulatively they may do so.
When considering the question of serious professional misconduct under Rule 27(2)(ii), it is open to the Panel members, if they think it right to do so, to consider the circumstances in which the doctor found himself at the time of the matters alleged. They should, however, disregard any matters of personal mitigation that may have emerged in the course of the evidence as these are relevant only to any possible sanction. They cannot be used to downgrade what would otherwise be facts sufficient to support a finding of serious professional misconduct to some lesser form of misconduct.
The Panel is doubtless aware that there has been media coverage and comment about these proceedings and otherwise about the doctor. The Panel members should of course put out of their minds any such comment that has come to their attention.
THE CHAIRMAN: Thank you. Does either counsel have any comment on the legal advice?
MR COONAN: No, thank you.
MR TYSON: No, thank you.
THE CHAIRMAN: Does any Panel member have any questions for the Legal Assessor on the legal advice or any matter that has not been covered that they would wish the Legal Assessor to address? (None) In that case, the Panel will shortly retire to make its determination. Before we do, I just raise the matter while we are all here of housekeeping. The Panel expects to take some time. I believe it has already been canvassed behind the scenes that we should be able to release you from being in this building until at least Monday, subject, obviously, to you being available by telephone to be recalled, should anything arise where we do need to recall parties. It is my understanding that this is an acceptable way forward. I see Mr Coonan nodding.
MR COONAN: Madam, it is. One thing I have not done, and I will rectify it immediately, is to make sure that your Panel secretary has the appropriate telephone numbers and email addresses. Perhaps that can be dealt with behind the scenes. It is acceptable if it is acceptable to the Panel.
MR TYSON: Madam, my understanding is that you are releasing counsel and the parties until Monday, subject to us being available at two hours’ notice should a legal question arise. If that be the suggestion, I adopt it.
THE CHAIRMAN: Thank you. Does anyone else have anything else to add on that matter? In that case, we will certainly not require you before Monday. If it transpires by Friday that it is clear that we do not require you on Monday, of course we will let you know. We will now retire. Thank you.
STRANGERS THEN, BY DIRECTION OF THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
(The Panel adjourned until 9.30 a.m. on Thursday, 22 November 2007,
with parties present when required)