GENERAL MEDICAL COUNCIL

FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)

Tuesday 27 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-EIGHT)

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

DECISION ON THE FACTS 1


STRANGERS HAVING BEEN READMITTED

THE CHAIRMAN: In just a moment I am going to read the Panel’s determination on the facts, and we do have copies available and we are going to make these available to the parties so that it can be followed as I read as it is quite lengthy. These copies will be available to the press afterwards. I am now going to read the determination.

D E C I S I O N

THE CHAIRMAN: Dr Southall: The Panel has given detailed consideration to all the oral and documentary evidence adduced in this case and has taken into account the submissions made by both Mr Tyson and Mr Coonan.

The Panel has borne in mind that the burden of proof rests on the complainants and that the standard of proof required is that the Panel has to be satisfied so that it is sure that each of the allegations has been proved. It has considered each head and sub-head of charge, including, where relevant, the items in the three appendices separately.

In setting out this determination the Panel has grouped certain heads of charge where they are related.

The Panel has made the following findings on the facts:

Head 1 has been admitted and found proved.
Head 2 as amended to read “From 1992 and at all material times you have been Professor of Paediatrics at the University of Keele and also a consultant paediatrician at the North Staffordshire Hospital, Stoke on Trent” has been admitted and found proved.

Mrs M

Heads 3(a), 3(b), 3© and 3(d) have been admitted and found proved.

Head 4 has been admitted and found proved.

Head 5(a) has been admitted and found proved.
Head 5(b) has been found proved.

The Panel found Mrs M to be a clear, honest and credible witness.

You accused her of drugging and then murdering M1 by hanging. This is supported in the notes written shortly after the interview, by Dr Corfield on 28 April 1998, and Mrs Parry, Mrs M’s solicitor, on 29 April 1998. Dr Corfield’s handwritten note includes the verbatim statement that she says was made by Mrs M: “they didn’t do toxicology quite possible you drugged him first”. Also, the Panel notes your report where you describe Mrs M as ‘categorically’ denying asphyxiating M1.

As to Miss Salem, in many respects the Panel did not find her evidence to be wholly convincing.

Head 6(a) has been found proved.
Head 6(b) has been found proved.
Head 6© has been found proved.

You were a registered medical practitioner and in that capacity you were instructed by Shropshire County Council to provide an independent expert report to the court. Although Mrs M was not your patient, your action in accusing her of drugging and then murdering Child M1 by hanging him was inappropriate, added to her distress and was in the circumstances an abuse of your professional position.

Head 17(a) has been found proved.

The Panel has found that during the interview on 27 April 1998 you questioned Mrs M in an accusatorial and intimidating manner. The Panel found your report dated 20 May 1998 to be significant in that it is supportive of Mrs M’s evidence.

The Panel has determined that head 17(b) is not applicable in relation to the particulars as set out in Appendix 3 and has therefore found it not proved.

Head 17© has been found proved in that you failed to respect Mrs M’s dignity by reason of the accusatorial and intimidating manner in which you questioned her.

The stem of head 18 was amended to read “Your failure/s under paragraph 17” and in relation to Mrs M, Head 18(a) has been found proved.
Head 18(b) has been found not proved.

The Panel was not satisfied that there was a duty to establish and maintain trust between you and Mrs M. She was not your patient. You were instructed by Shropshire County Council to prepare an independent expert report for the court.

Head 18© has been found proved.

Dr Dinwiddie letter dated 22 March 1990

Heads 7(a), 7(b) and 7© have been admitted and found proved.

Heads 8(a)(i), 8(a)(ii) and 8(a)(iii) have been admitted and found proved.
Head 8(b) has been found proved.

The Panel is satisfied that the letter addressed to Dr Dinwiddie, dated 22 March 1990, was copied and then sent to Dr Weaver and an unnamed consultant paediatrician at the Royal Gwent Hospital. It is written on both the file copy and the original letter that it was so copied. Moreover, Dr Dinwiddie and Dr Weaver received the letter.

Head 8©(i) has been found proved.

The chronology of events is apparent from the documentary evidence. Your report of 27 June 1991 indicates that the decision to involve a paediatrician local to the child’s home was made after Mrs H had indicated that she no longer wished to be involved with the Royal Brompton Hospital. Despite the inconsistencies between Mrs H’s oral evidence and her affidavit, the Panel is satisfied that Mrs H did not give her consent to the involvement of a local paediatrician. Even if Mrs H had previously given her consent, the Panel is further satisfied that it would have been withdrawn when Mrs H telephoned you and informed you that she was rejecting your proposed treatment regime.

Head 8©(ii) has been found proved.
Head 8©(iii) has been admitted and found proved.

Heads 9(a) and 9(b) have been found proved in relation to 8(b).

The Panel has found that it was inappropriate to send a letter containing sensitive information relating to a child to an unnamed paediatrician at a hospital where that child was not being and had not been treated.

Head 9(a) has been found not proved in relation to 8©(i).

Professor David’s evidence confirms that the needs of the child are paramount. This case included alleged child protection issues. Dr Weaver, a local paediatrician, had previously been involved in the case. Therefore it was appropriate not to seek the consent of Mrs H when involving a local paediatrician.

Head 9(a) was not considered in relation to 8©(ii) and 8©(iii) as it cannot be appropriate to seek consent to the sending of a letter to an unnamed local paediatrician where that action has itself been found to be inappropriate.

Head 9(b) has been found not proved in relation to 8©(i).
Head 9(b) has been found not proved in relation to 8©(ii).
Head 9(b) has been found not proved in relation to 8©(iii).

Special Case Files

Head 10(a), as amended to read “You created, or caused to be created, an ‘SC’ file wherein certain original medical hospital records relating to the child were then placed by you or on your behalf”, has been found proved in relation to Child D and Child H.

Child A

The Panel is satisfied that the ‘MRI report’ is an original medical hospital record. However, there is evidence that the ‘MRI report’ may have been put in the SC file by mistake and the Panel could not be satisfied that the ‘MRI report’ was placed in the SC file by you or on your behalf.

Child B

The Panel is satisfied that the ‘Crawley referral letter’ is an original medical hospital record. However, there is evidence that the SC file may have been tampered with when not under your control and the Panel therefore could not be satisfied that the ‘Crawley referral letter’ was placed in the SC file by you or on your behalf.

Child D

The Panel is satisfied that all documents referred to in Appendix 1 are original medical hospital records and that they were filed in the SC file pursuant to your policy.

Child H

The Panel is satisfied that all documents referred to in Appendix 1 are original medical hospital records. In regard to Dr Samuels’ manuscript note, this was compiled following his meeting with the parents of child H. It is signed and contains certain data which cannot be found elsewhere in the child’s medical records. The Panel accepts Professor David’s opinion that the document is a detailed summary outline of the case. The Panel found that the manuscript note is an original medical hospital record. The Panel is also satisfied that all the documents were filed in the SC file pursuant to your policy.

Head 10(b) has been found proved in relation to Child B, Child D and Child H.

In respect of Child B the Panel noted the use of the present tense in this head of charge. It is undisputed that the ‘Crawley referral letter’ is not currently in the child’s hospital medical records.

In the light of the Panel’s findings in head 10(a), in relation to Child A and Child B, the Panel made no findings under heads 11 and 12, in respect of Child A and Child B.

In relation to Child D and Child H

The stem of head 11 was amended to read “The placing, or causing to be placed by you or on your behalf, of such cited original medical records in a ‘SC’ file”.

Head 11(a), as amended to read “Damaged the integrity of the child’s hospital medical records”, has been found proved.

Head 11(b) has been found proved.

The Panel has found that the setting up of SC files was not in itself damaging provided that there was sufficient internal signposting, knowledge by the clinical staff looking after the children and that the information within the SC files was readily accessible. The Panel was not satisfied that you had systems in place to ensure that there was sufficient internal signposting. There is also evidence that, if such a system existed, it was not adhered to nor was there sufficient knowledge on the part of the people who should have known of either the system or the existence of the SC files.

The Panel accepted that the difficulties experienced by the families of Child D and Child H in obtaining the SC files may have been a result of the then current practice as to disclosure of medical records for litigation purposes.

Head 12(a) has been found proved.
Head 12(b) has been found proved.
Head 12© has been found proved.

You have a responsibility and duty as a doctor to ensure that medical records are readily available to colleagues as and when required. You were in a position where you could and did make decisions in regard to patients. Your actions were therefore an abuse of your position as the treating doctor.

Child A and Child H – Transfer of SC Files

In the light of the Panel’s decision in respect of head 10(a) and 10(b), in relation to Child A, the Panel makes no finding under this head of charge in relation to Child A.

Heads 13(a), 13(b) and 13© have been admitted and found proved.

Head 14(a) has been found proved.
Head 14(b) has been found proved.
Head 14© has been found proved.

The Panel has already found that having the documents in the SC files at the hospital damaged the integrity of the child’s hospital medical records. The damage caused was compounded by the transfer of the records to a hospital at which the child was not being and had not been treated.

Computer medical records

Head 15(a) has been admitted and found proved.

Head 15(b), as amended to read “These computer medical records are not contained in children’s hospital medical records at either the Royal Brompton Hospital (for Child A and Child H) or the North Staffordshire Hospital (for Child D and Child B)”, has been found not proved.

The Panel has interpreted ‘computer medical records’ as the data held in the computer rather than the documents or the format of the documents that were produced from the computer. The Panel found that all the data held on the computer was available in the children’s hospital medical records.

Head 15© has been admitted and found proved.

Head 16(a) has been found not proved.

The Panel is not satisfied that the transfer of the computer medical records or anything contained with them was detrimental to the individual children.

Head 16(b) has been found not proved.

The Panel is satisfied that the keeping of this data on the computer did not amount to the keeping of secret medical records as there is evidence that the IT department members, the relevant clinical team and the nurses inputting the data were aware of the existence of the computer and that others had direct access to the computer. You have provided evidence that you wrote to the Business Manager in 1993 raising the issue of registration of the data on the computers for the purposes of the Data Protection Act 1984.

Head 16© has been found not proved.
Head 16(d) has been found not proved.

Mrs D

Head 17(a) has been found not proved.
Head 17(b) has been found not proved.
In light of the Panel’s earlier determination in relation to the Rule 27 submission the Panel has not considered head 17© in respect of Mrs D.

The Panel believed Mrs D’s evidence that some incident occurred in the corridor. It could not, however, be satisfied that this allegation was proved. There is no evidence to corroborate Mrs D’s account and she made no complaint about this incident until 2004.

The stem of head 18 was amended to read “Your failure/s under paragraph 17”. Head 18 in its entirety has been found not proved.

Having reached its findings on the facts, the Panel then considered whether the facts found proved would be insufficient to support a finding of serious professional misconduct. The Panel has found that the facts proved would not be insufficient.

For the benefit of the public, I should explain that the Panel will now invite
Mr Tyson to adduce evidence, if he wishes to do so, as to the circumstances leading up to the facts which have been found proved, the extent to which those facts indicate serious professional misconduct on your part and as to your character and previous history. After that, the Panel will invite Mr Coonan to address them on those matters and also to adduce evidence in mitigation, if he wishes to do so. Both counsel are reminded that they should refer to the Indicative Sanctions Guidance when making submissions on sanction.

The Panel will then proceed to consider whether you have been guilty of serious professional misconduct in respect of those facts that have been found proved against you, and, if so, they will go on to consider whether or not they should make any direction regarding your registration.

There is just one point as regards this that has been drawn attention to. The Legal Assessor has just raised a possible issue simply about the ordering of paragraphs. I think it does not make any material difference to the determination. Having made that final statement, I am now going to ask Mr Tyson whether he requires some time before we go on to the next stage.

MR TYSON: Madam, yes. You have made important findings in relation to Mrs M. Mrs M, as you will recall, you heard evidence from her from Australia, and, in view of the fact that I understand there is some eleven hours difference between now and where she is in Australia, I need to take instructions from her, as she is my client – I am not instructed, as you will recall, by the GMC – as to any instruction she has on Indicative Sanctions. Together with that, and together with the time of the day and the other findings that you have made, I would greatly appreciate it if I did not have to address you until 2.00 p.m. tomorrow.

THE CHAIRMAN: The Panel is happy that we should not reassemble until 2.00 p.m. tomorrow if that is agreeable. Any other views, Mr Coonan?

MR COONAN: Madam, no, I think that is eminently sensible, and Mr Tyson was good enough to alert me as to a number of matters which may flow depending on your findings of fact, but there are some other matters which my learned friend and I have discussed in any event which might or might not raise questions over whether or not you are in a position to proceed to a determination in respect of stage 2 even if we were to sit at two o'clock tomorrow, and I do not know what my learned friend’s final position is on this. I am sorry to be a little Delphic, but it may be that if he and I were to have a few minutes, and I mean literally a few minutes, discussion, we might be able to clarify matters even further for you.

THE CHAIRMAN: So you would wish us to wait while you now have a brief word?

MR COONAN: I think it might be helpful, yes. No more than five minutes.

THE CHAIRMAN: In that case, we will adjourn briefly while you have that brief word.

MR COONAN: Thank you.

(The Panel adjourned for a short time)

THE CHAIRMAN: Is it Mr Tyson or Mr Coonan? Mr Tyson is on his feet.

MR TYSON: Mr Coonan raised an important matter with me, and the important matter we have not been able to resolve at the moment. Can I ask merely that the Panel adjourn until 2.00 tomorrow, and can I also say I am not guaranteeing I can properly present my submissions at 2.00, bearing in mind we have to resolve this important matter. I apologise for being Delphic about it, but there is an issue which is not currently in the control of either my learned friend or myself, which is some information that the Panel needs to know, and it is a question of whether by two o'clock tomorrow the Panel will be able to know that important information or not. Meanwhile, my pure application to you is to adjourn at this moment till 2.00.

THE CHAIRMAN: Thank you. Is that supported by you, Mr Coonan?

MR COONAN: Madam, it is, yes. Perhaps I need not say anything else at the moment, but there will be some outstanding matters to attempt to tie up tomorrow, but we will have to see really what tomorrow brings before we can attempt to wrap them up.

THE CHAIRMAN: We will now then adjourn until 2.00 p.m. tomorrow. Thank you. Can I just take this opportunity to say that the matter that you saw me discuss with the Legal Assessor as to whether there was something that needed to be reordered, whether a heading in fact was in the wrong place on the determination, that proved to be incorrect. You can take it that the determination as set out is entirely as intended.

(The Panel adjourned until 2.00 p.m. on Wednesday 28 November 2007)