GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Tuesday 4 December 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 THIRTY-THREE)
MR RICHARD TYSON of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the Complainants.
MR KIERAN COONAN QC and MR JOHN JOLLIFFE of counsel, instructed by Messrs Hempsons, solicitors, appeared on behalf of Dr Southall, who was present.
(Transcript of the shorthand notes of T. A. Reed & Co.
Tel No: 01992 465900)
I N D E X
Page No
DETERMINATION 1
SUBMISSIONS AS TO IMMEDIATE SANCTION
MR TYSON 11
MR COONAN 12
LEGAL ADVICE 12
DETERMINATION 13
THE CHAIRMAN: Good afternoon. I am now going to read the Panel’s determination.
Dr Southall:
The Panel has considered this case in accordance with the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988.
The Panel has heard that from 1982 you were a senior lecturer and subsequently a consultant paediatrician based at the Royal Brompton Hospital, London. From 1992 you were Professor of Paediatrics at the University of Keele and also a Consultant Paediatrician at the North Staffordshire Hospital, Stoke on Trent.
In January 1998 you were contacted by local authority social workers who had concerns about the welfare of Child M2. You were told that there were similarities between current events in Child M2’s life (including apparent suicide threats) and events in the life of his elder brother, Child M1, who in June 1996, when aged 10, had died by hanging. You gave the social workers certain advice. On 29 January 1998 the court made an emergency protection order. As a consequence Child M2 was removed from his parents’ care.
On 2 February 1998 you wrote what you described as a preliminary report, following which on 3 February 1998 the local authority applied for an Interim Care Order. On 17 March 1998 you were instructed by the local authority to prepare a report for the care proceedings. Your report was to cover both Child M2 and his family. For the purpose of preparing your report you interviewed Mrs M on 27 April 1998. The Panel has found proved that during the course of this interview you accused Mrs M of drugging Child M1 and then murdering him by hanging. This was done in an accusatorial and intimidating manner.
The possibility of M1 being the victim of murder had not been raised until you became involved. At the inquest the coroner had recorded in his verdict that he had considered suicide and accident but in the event he returned an open verdict. It is apparent that no evidence was presented at the inquest to suggest that murder was a possibility. Despite the verdict, you formed the belief that the circumstances of M1’s death needed to be investigated by you.
The Panel is extremely concerned by these facts. You are a registered medical practitioner and in that capacity you were instructed by Shropshire County Council to write an expert report for the court in care proceedings based on the papers that had been provided to you. The letter of instruction made it clear that it was important that the parties had confidence in your independent status.
Your action in accusing Mrs M of murdering Child M1 was inappropriate, added to her distress as a bereaved person and was, in the circumstances, an abuse of your professional position. By acting in an accusatorial and intimidating manner you failed to treat Mrs M politely and considerately and did not respect her dignity. This behaviour was also inappropriate and caused distress to Mrs M.
In some situations doctors have responsibilities not only to patients but also to third parties. Although Mrs M was not your patient you interviewed her in your capacity as a registered medical practitioner and you had a clear obligation to treat her as you should treat a patient, that is politely and considerately and respecting her dignity. The manner in which you conducted the interview, questioned and directly accused Mrs M was incompatible with your position as a doctor. The Panel regards your behaviour towards Mrs M as a very serious instance of misconduct.
In March 1989 Dr Dinwiddie, a consultant paediatrician at Great Ormond Street Hospital, referred Child H to you for investigation and advice. In September 1989 and again in March 1990 Child H was admitted to the Royal Brompton Hospital where his breathing was monitored. In March 1990 you proposed to the parents a home monitoring and care regime. However, on about 22 March 1990 Child H’s parents informed you that they no longer wanted you to be involved in the management of Child H’s care.
On 22 March 1990 you wrote to Dr Dinwiddie to the effect that the parents were not acting in Child H’s best long term interests, that they liked the idea of him having a rare illness, that you were suspicious of their motives and that you viewed the long term prognosis with great concern. You copied and sent this letter to an unnamed Consultant Paediatrician at the Royal Gwent Hospital even though no-one there was currently involved in Child H’s care or had been involved in the past. The letter contained sensitive and confidential information. Your action was inappropriate and in breach of the confidentiality owed by you to Child H and his parents.
In the General Medical Council’s Guidance, Professional Conduct and Discipline: Fitness to Practise (March 1989), which was in force at that time, paragraphs 79-82 cover the subject of professional confidence. It is a doctor’s duty, subject to the exceptions listed in Paragraph 81, to strictly observe the rule of professional secrecy by refraining from disclosing voluntarily to any third party information about a patient which he has learnt directly or indirectly in his professional capacity. None of the exceptions applied in this case because the letter was sent to an unidentified recipient.
In relation to Child D and Child H, you created, or caused to be created, an “S/C” File for each child wherein certain original medical hospital records relating to the children were then placed by you or on your behalf. These medical records are not elsewhere in the children’s hospital medical records. The placing of the original medical records in “S/C” Files damaged the integrity of the children’s hospital medical records and caused the items concerned to be inaccessible to others involved in the medical care of the children at that time or in the future.
You have a responsibility and duty as a doctor to ensure that medical records are readily available to colleagues as and when required. Failure to do so can result in serious consequences. Your action in this respect was not in the best interests of either Child D or Child H. It was inappropriate and an abuse of your professional position.
You treated Child H at the Royal Brompton Hospital, and there created an “S/C” file for the child. The “S/C” file contained original Royal Brompton Hospital medical records relating to Child H. When you moved to the North Staffordshire Hospital in 1992 you took, or caused to be taken from the Royal Brompton Hospital, the S/C File relating to Child H. Your action was not in the best interests of Child H. It was inappropriate and an abuse of your professional position.
The damage to the integrity to the child’s hospital medical records was compounded by transferring them to a hospital at which the child was not being and had not been treated.
The Panel takes a serious view of your conduct in relation to the S/C files over a considerable period of time.
In 2004 the Professional Conduct Committee (PCC) found you guilty of serious professional misconduct in relation to the Clark case and placed a condition on your registration for a period of three years. The events in that case took place in 2000 and also concerned child protection issues. The Council for the Regulation of Health Care Professionals appealed the decision of the PCC. In his judgment given on 14 April 2005 Mr Justice Collins held that that the PCC’s decision to impose conditions was not unduly lenient but that the condition imposed was not sufficient to prevent any involvement by you in child protection work. Moreover, the PCC should have directed that a resumed hearing take place towards the end of the three year term. He substituted more tightly drawn conditions for that originally ordered. A Fitness to Practise Panel reviewed the case on 23 July 2007 and determined that you had complied with the conditions. It directed that the period of conditional registration should be extended for a further period of twelve months.
The events that gave rise to the Clark case occurred after the matters before this Panel. These events and the consequent finding of serious professional misconduct have been disregarded by this Panel when considering the question of serious professional misconduct before it.
In February 2007 the Attorney General set in hand a review of cases in which you had acted as a prosecution witness. This was with particular reference to the S/C Files. The report is yet to be published. The Panel has also heard that the South Wales police are investigating the treatment of Mrs H’s son.
The Panel has concluded that any police investigation and the Attorney General’s review are not relevant to its consideration of the question of serious professional misconduct, nor indeed to any sanction.
It has been accepted on your behalf that, in the light of the findings of fact there is evidence before the Panel from which it could conclude that you are guilty of serious professional misconduct.
The Panel has found that your conduct has fallen well below the standard expected of a registered medical practitioner in a number of respects. It therefore finds you guilty of serious professional misconduct.
The Panel next considered what action, if any, to take in relation to your registration.
The Panel has borne in mind throughout its deliberations that any sanction imposed must be proportionate and appropriate, and that the purpose of sanctions is not to be punitive but to protect patients and the public interest. The public interest includes not only the protection of patients, but also the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The public interest can also include a doctor’s return to safe practice.
The Panel has balanced the public interest against your own interests. It has taken into account the Indicative Sanctions Guidance published by the General Medical Council. The Panel is aware that the question of what, if any, sanction to impose is a matter for the Panel, exercising its own independent judgment.
The Panel has given consideration to the submissions made by both Counsel. Mr Tyson, on behalf of the Complainants has submitted that the only appropriate sanction in this case is that of erasure. Mr Coonan, on your behalf, has submitted that an order placing tight restrictions on your registration would be sufficient.
The Panel is in no doubt that it is necessary to take action against your registration and that the sanction imposed must mark strong disapproval of your behaviour. Given the serious nature of your misconduct the Panel has determined that to conclude this case without making any direction in respect of your registration or to issue a reprimand would not be sufficient.
The Panel next considered whether it would be sufficient to impose conditions on your registration.
The Panel is aware that you are a paediatrician of international renown and that you have contributed significantly to the field of paediatrics and child protection.
The Panel recognises that your misconduct has arisen as a result of the child protection work that you were undertaking at that time and that your actions, although clearly misguided, may have been motivated by a concern to protect children. There is no evidence before the Panel to demonstrate that your actions have caused direct harm to patients or their families other than in cases involving child protection. Since your reinstatement in 2001, following suspension by your Trust, you have not worked in child protection. You have complied with the conditions to which your registration has been subject.
The Panel has been provided with testimonials indicating that you are held in high regard by your professional colleagues. The testimonials highlight your clinical skills and commitment to the welfare of children. They also indicate that you have undertaken important ground-breaking research, which has influenced how the medical care of babies and children has been managed both in the United Kingdom and internationally.
The Panel has heard oral evidence from Dr Parke, a consultant paediatrician at the University Hospital of North Staffordshire and from Dr Bridson, a recently retired Consultant Paediatrician and Chairman of the Trustees of Child Health Advocacy International, a charity founded by you. Dr Parke has given evidence about your outstanding clinical ability and your compliance with the conditions currently on your registration. He also informed the Panel that numerous letters of support and thanks from your patients have been received. Both witnesses confirmed that they were aware of the findings of fact made by this Panel. Nevertheless they remain confident in your clinical abilities. The Panel has also considered carefully the evidence given by Dr Chipping, Medical Director at the time, to the Professional Conduct Committee in August 2004 and her testimonial dated 16 November 2006. She holds in high regard your clinical skills and the contribution you have been making to the paediatric team at North Staffordshire Hospital.
The Panel has noted the determination of the Professional Conduct Committee in August 2004, the judgment of Mr Justice Collins in April 2005 and the determination of the Fitness to Practise Panel at the review in July 2007.
The Panel has been mindful of Lord Bingham’s well known observation in the case of Bolton v The Law Society, adopted in the case of Dr Gupta, as noted in the Indicative Sanctions Guidance:-
“A profession’s most valuable asset is its collective reputation and the confidence which that inspires………The reputation of the profession is more important than the fortunes of an individual member……… Membership of a profession brings many benefits, but that is part of the price.”
The Panel also had in mind Lord Hoffman’s judgment in Bijl v General Medical Council [2002] Lloyds Med Rep 60, in which he said:-
“The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent if feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment……..”
Having considered all the evidence that is before it, the Panel accepts that were your registration to be restricted by tightly drawn conditions, patients would be unlikely to be at risk. However, in considering the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour the Panel has concluded that the imposition of conditions would not reflect the gravity of your misconduct. Your multiple failings over an extended period caused the Panel great concern. Furthermore, the Panel is influenced by the fact that, although the events in the current case predate those in the Clark case, there are now two instances where without justification you have accused a parent of murdering their child. The Panel has therefore determined that to impose conditions on your registration, no matter how tightly drawn, would not be sufficient to protect the public interest.
The Panel next considered whether a period of suspension would be appropriate. It has carefully balanced the public interest against your own interests. It has taken into account the aggravating features of this case and the mitigation that has been advanced by you. The Panel is particularly concerned by your lack of insight into the multiplicity of your failings over a long period. The Panel is aware that an apparent lack of remorse should not result in a higher sanction but it has noted that notwithstanding the findings of fact you have not either directly or through your counsel offered an apology to any of the Complainants for your actions nor has there has been any acknowledgement by you as to your failings.
In all the circumstances the Panel has concluded that you have deep seated attitudinal problems and that your misconduct is so serious that it is fundamentally incompatible with your continuing to be a registered medical practitioner.
The Panel therefore directs that your name be erased from the Medical Register. The Panel is satisfied that this is necessary in the public interest for the maintenance of confidence in the profession and in the interests of declaring and upholding proper standards of professional conduct and behaviour.
The effect of the foregoing direction is that, unless you exercise your right of appeal, your name will be erased from the register 28 days from the date on which notice of this direction is deemed to have been served upon you.
Having reached a decision that your registration should be erased, the Panel is minded to consider, in accordance with Section 38 of the Medical Act 1983 as amended, whether to direct that your registration be suspended forthwith.
The Panel will invite submissions from both Counsel on this matter. Mr Tyson?
MR TYSON: Madam, can I draw the Panel’s attention to Rule 32 of the old rules. Rule 32 says:
“If in any case the Committee determine to suspend the registration of a practitioner or to erase his name from the Register, the Committee shall then also consider and determine whether it is necessary for the protection of members of the public or would be in the best interests of the practitioner to order that his registration shall be suspended forthwith”.
Madam, in view of the Panel’s findings, I seek to apply the same reasoning that you have given for erasure of the practitioner as it being necessary for the protection of the interests of the public or in the best interests of the practitioner that his registration should be suspended forthwith. I rely on the same reasons that you have given earlier to support immediate suspension.
THE CHAIRMAN: Thank you. Mr Coonan?
MR COONAN: Madam, of course the reasoning that you have set forth in relation to the decisions supporting a direction to erase is not necessarily coterminous with your jurisdiction in respect of section 38 and Rule 32. I point to a number of features which, in our submission, bear directly upon this matter. May I just collect them together. First of all, as you have said and it is undoubtedly correct, there is no criticism of Dr Southall’s general competence as a medical practitioner. He has been practising in general paediatrics at the North Staffordshire Hospital up to most recent times, but, as you know, he has been here for the most recent period. Apart from that, he has been practising in that regard with full support and without any degree of questioning or criticism.
Secondly, again as you have observed, the criticisms which have arisen have arisen in the context of child protection only. He has not practised in the field now in child protection for many years. There is no possibility at all and no wish on his part to practise in child protection, even should the decision of erasure stand in respect of the interregnum period with which we are concerned in respect of the operation of section 38. Our submission is that from the standpoint of public protection, which is an aspect of the public interest, there is no need – and I stress that – to impose immediate suspension.
In terms of the wider issue of public interest, that is a matter of valued judgment for the Panel as to whether it is necessary for Dr Southall to cease practice altogether as from today without allowing him a period of grace until the sanction of erasure should take effect. Again, we say, despite what you have said in your reasoning, there is no need for him to be immediately suspended.
Thirdly, in relation to the interests of the practitioner, we say there is no interests relating to him that requires an immediate suspension, largely because he is not practising in the area in which you have found him to be wanting.
For those reasons, we say that it is not necessary for the intervening period for an additional sanction of immediate suspension to take effect. That is the way I put it.
THE CHAIRMAN: Thank you, Mr Coonan. I am going to ask the Legal Assessor for legal advice for the Panel on this matter.
THE LEGAL ASSESSOR: When the Panel directs erasure as the sanction, it has the power under section 38 of the Medical Act 1983 to impose an immediate order to suspend the doctor’s registration. The power is at the discretion of the Panel based on the facts of the case. It is a matter for the Panel members’ judgment. The Panel should be satisfied that such an order is necessary for the protection of the public or is in the public interest.
I remind the Panel that the public interest includes not the only protection of patients, but also the maintenance of public confidence in the profession and upholding proper standards of conduct. The Panel should balance the public interest, which may require the imposition of an immediate sanction, against the doctor’s interest which may be to enable him to practise pending an appeal.
THE CHAIRMAN: Does either counsel have any comment on the legal advice we have received?
MR TYSON: No, madam.
MR COONAN: No, madam.
THE CHAIRMAN: The Panel will go into private to consider this matter. Can I ask all strangers to withdraw, please.
BY DIRECTION OF THE CHAIR, STRANGERS WITHDREW, AND THE PANEL DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
D E T E R M I N A T I O N
THE CHAIRMAN: Dr Southall,
Having determined that your name should be erased from the Medical Register, the Panel has considered in accordance with section 38 of the Medical Act 1983, as amended, whether your registration should be suspended forthwith. Mr Tyson has submitted on behalf of the complainants that immediate suspension is necessary in the public interest. Mr Coonan has submitted on your behalf that suspension forthwith is not necessary as patients are not at risk.
The matters identified in the determination, which necessitated the erasure of your name from the Medical Register, are of serious concern. The Panel has therefore determined that it is necessary in the public interest that your registration should be made subject to suspension with immediate effect.
This means that your registration will be suspended from today. The substantive direction for erasure, as already announced, will take effect 28 days from today, unless you lodge an appeal in the interim. If you appeal, the immediate suspension will remain in force until the substantive direction takes effect.
That concludes this case.
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