GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL
(applying the General Medical Council’s Preliminary Proceedings
and Professional Conduct Committee (Procedure Rules) 1988)
On:
Monday 23 July 2007
Held at:
St James’s Buildings
79 Oxford Street
Manchester M1 6FQ
Case of:
DAVID PATRICK SOUTHALL MB BS 1971 Lond
Registration No: 1491739
(Review)
Panel Members:
Dr F Wilson (Chairman)
Mr S Burton
Dr G Hanlon
Ms E Cunningham (Legal Assessor)
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MS A FOSTER, Counsel, instructed by Hempsons, Solicitors, appeared on behalf of the
doctor, who was present.
MR R TYSON, Counsel, instructed by Field Fisher Waterhouse, Solicitors, appeared on
behalf of the General Medical Council.
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Transcript of the shorthand notes of Transcribe UK Ltd
Tel No: 01889 270708
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INDEX
Page
ALLEGATIONS
1
OPENING STATEMENT by MR TYSON
6
SUBMISSIONS
by
MS
FOSTER
31
LEGAL
ASSESSOR’S
ADVICE
36
DETERMINATION
37
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A
THE CHAIRMAN: Good morning. We are to review the
case of Dr David Patrick Southall. As you may be aware, the
GMC has reformed its Fitness to Practise procedures. These
changes took effect on 1 November 2004. The transitional
arrangements for cases such as this are that the Committee
will now be called a Fitness to Practise Panel, but will operate
under the old Preliminary Proceedings Committee and
B
Professional Conduct Committee Procedure Rules 1988.
The Fitness to Practise Panel will convene in order to consider
the case of Dr David Patrick Southall. Dr Southall is present
at today’s hearing and is represented by Ms Alison Foster,
Counsel, instructed by Hempsons Solicitors, Mr Richard
Tyson, Counsel, instructed by Field Fisher Waterhouse,
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Solicitors, represents the General Medical Council. The Legal
Assessor is Miss Esther Cunningham.
THE CHAIRMAN: Doctor, you have been before a Panel
before, so you know the layout of the room. I will introduce
you to the people who are present.
(The Chairman explained
the layout of the room).
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Dr Southall, I am going to ask you to stand and to confirm
who you are. If you would kindly stand and confirm that you
are David Patrick Southall?
DR SOUTHALL: I confirm that.
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THE CHAIRMAN: I do not think there is any need for you to
stand all the way through the next part of the proceedings. I
am going to ask the Secretary to the Panel to remind the Panel
of the charges which were previously proved against you.
THE SECRETARY TO THE PANEL: That being registered
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under the Medical Act:
1.
In November 1999 Sally Clark was convicted of the
murder of two of her children, Christopher and Harry Clark.
2.
On about 27 April 2000 you watched the “Dispatches”
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programme about the Sally Clark case that was broadcast on
Channel 4 television that night.
3.
As a result of information gleaned during your
watching of the programme, on the next day you contacted the
Child Protection Unit of the Staffordshire Police to voice your
concerns about how the abuse to Christopher and Harry Clark
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had, in fact, occurred.
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4.
As a result of such contact, on 2 June you met
Detective Inspector Gardner of the Cheshire Constabulary, the
senior investigating officer into the deaths of Christopher and
Harry Clark, and in effect told him that, as a result of
watching the programme, you considered that:
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a.
Stephen Clark, Sally Clark’s husband, had deliberately
suffocated his son, Christopher Clark, at a hotel prior to his
eventual death.
b.
Stephen Clark was thus implicated in the deaths of
both Christopher and Harry Clark.
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c.
There was thus concern over Stephen Clark’s access
to, and the safety of, the Clarks’ third child, Child A.
5.
At the time of meeting Detective Inspector Gardner,
you:
a.
Were not connected with the case.
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b.
Made it clear that you were acting in your capacity as
a consultant paediatrician with considerable experience of life
threatening child abuse.
c.
Were suspended from your duties by your employers,
the North Staffordshire Hospital NHS Trust (“the Trust”).
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d.
Knew that it was an agreed term of the Trust’s
enquiries that led to such suspension that you would not
undertake new outside child protection work without prior
permission of the Acting Medical Director of the Trust.
e.
Had not sought permission of the Acting Medical
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Director prior to contacting the Child Protection Unit of the
Staffordshire Police and meeting with Detective Inspector
Gardner.
f.
Relied on the contents of the “Dispatches” television
programme as the principal factual source for your concerns.
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g.
Had a theory about the case, as set out in Head 4
above, that you presented as fact as underpinned by your own
research.
6.
Your actions as described in Heads 3 and/or 4 and/or 5
were:
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a.
Precipitate.
b.
Irresponsible.
c.
An abuse of your professional position.
7.
On 30 August 2000 you produced a report on the Clark
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family at the request of Forshaws, Solicitors.
a.
At the time that you produced your report you:
i.
Did not have any access to the case papers, including
any medical records, laboratory investigations, post-mortem
records, medical reports
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or x-rays.
ii.
Had not interviewed either Stephen or
Sally Clark.
b.
Your report concluded that:
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i.
It was extremely likely if not certain that Mr Clark had
suffocated Christopher in the hotel room.
ii.
You remained convinced the third child of the Clark
family, Child A, was unsafe in the hands of Mr Clark.
c.
Your report implied that Mr Clark was responsible for
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the deaths of his two eldest children, Christopher and Harry.
d.
Your report was thus based on a theory that you had
about the case that you presented as fact as underpinned by
your own research.
e.
Your report declared that its contents were true and
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may be used in a court of law whereas it contained matters,
the truth of which you could not have known or did not know.
f.
Your report contained no caveat to the effect that its
conclusions were based upon very limited information about
the case held by you.
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g.
When given the opportunity to place such a caveat in
your report you declined, by faxed e-mail dated 11 September
2000, on the basis that, even without all the evidence being
made available to you, it was likely beyond reasonable doubt
that Mr Clark was responsible for the deaths of his two other
children.
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8.
Your actions as described in Head 7 above were
individually and/or collectively:
a.
Inappropriate.
b.
Irresponsible.
B
c.
Misleading,
and
d.
An abuse of your professional position.
THE CHAIRMAN: Thank you. I am now going to ask Mr
Tyson, on behalf of the General Medical Council, to remind
the Panel of the circumstances which led to the previous
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decision, the doctor’s previous history and to present any oral
or documentary evidence he may wish to adduce about the
doctor’s conduct since the last hearing.
Mr Tyson, the Panel have a bundle, which goes up to page 11.
I understand that you may wish to give us further
documentation at this point. It would be helpful if you do so.
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You may wish us to adjourn for a short period to read it.
MR TYSON: Madam, there is a bundle, which has been
prepared by the General Medical Council, who are responsible
for preparing the bundle in this case, not – can I add, for the
sake of the record – those instructing me. That bundle was
only finalised on Friday. It is now available and I will be: (a)
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asking for it to be called C1 and, (b) asking that you read it
before I make my opening. It does contain a number of
important documents.
In addition to that, there are some documents to be added to it.
I do not know whether you have actually physically got the
bundle.
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THE CHAIRMAN: If you can give us an idea of its size and
length, we will be able to get some idea of how long we will
need to consider.
MR TYSON: 75 pages.
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THE CHAIRMAN: Do you wish us to have the further
documents at this point? You mentioned some other
documents to be added.
MR TYSON: Yes. I do not know the state of them, whether
they can be put in.
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THE CHAIRMAN: Have they been seen by the Legal
Assessor?
THE LEGAL ASSESSOR: No.
THE CHAIRMAN: Has the Defence been able to consider
them?
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MS FOSTER: Madam, not through the fault of my friend, I
saw the bundle in its form
by e-mail last night at nine-thirty. This morning I had a
bundle handed to me shortly
after I arrived. We are content that it contains what the index
tells us it contains. I have no observations on its contents.
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THE CHAIRMAN: It is unusual for the Legal Assessor not to
have had everything.
Can we just clarify, when we are talking about the bundle,
does this include the additional documents?
MR TYSON: Yes. You have had what I call “the yellows”.
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There is an additional bundle. There is a bundle of documents
of 75 pages, which I am going to ask you to read. As I
understand it, it is not yet in a form to be given to you because
it is about to be hole-punched and filed by the GMC staff.
Before you get it, there are going to be four additional
documents put in it. The practical arrangements of that will
take about five minutes before you physically get a bundle. I
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would anticipate it would take you about half-an-hour to read.
THE CHAIRMAN: Very briefly, before I come to the Legal
Assessor, the document of 75 pages, which you have seen this
morning, have you also seen the four additional documents?
MS FOSTER: Yes. Madam, it is my understanding that it
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will reach 75 pages when the additions are made. I have been
handed what, I think, are those extra pages. I am sure they
will be as my friend has described them. I believe that I have
copies.
THE CHAIRMAN: Legal Assessor?
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THE LEGAL ASSESSOR: I would just like to say that it is
most inappropriate for the Legal Assessor not to have the
documentation beforehand. My job as being an independent
is to advise the Panel and if I am in the dark then it is very
difficult for me to actually advise the Panel appropriately.
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MR TYSON: I accept the Legal Assessor’s observations. I
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feel uncomfortable when she is looking at me, telling me
about those observations, because it is not the fault of neither
myself nor my instructing solicitors that you have not had the
bundle. I accept that you should have had it.
THE CHAIRMAN: I am sure the Panel will wish to receive
these documents and consider them. I am slightly
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uncomfortable with receiving these documents without the
Legal Assessor having already had a chance to scan them. I
think, once we have the documents, we will adjourn for half-
an-hour in order to achieve those two things. I would like the
Legal Assessor to very briefly consider the bundle before the
Panel does, only just to ensure that there is not any material
which should not come before the Panel. I think at the
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moment we are waiting for the technical aspects of putting the
bundle together. I am going to invite the Panel to adjourn at
this point.
MS FOSTER: Madam, there are two things: The first is of
housekeeping. If it is of assistance to you and your Legal
Assessor, there is no point that I would take on the contents of
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the documents. The second point is this, which may inform
your reading, Dr Southall is pleased to tell the GMC this
morning that he freely accepts a continuation of the conditions
as drafted on his practice for a further period of 12 months.
We understand from correspondence with the GMC it is such
a decision that they would be urging upon you today. I would
wish you to know that before you go into your reading
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exercise and your consideration. I would also accept,
necessarily, a further review at the end of those 12 months.
THE CHAIRMAN: Thank you. I am sure the Legal Assessor
would be reminding me, even if I were not reminding myself,
that that sort of decision is a decision for the Panel
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notwithstanding the views of all the representatives.
MS FOSTER: Madam, with respect, she would be entirely
right to do so.
THE CHAIRMAN: I will now invite the Panel to adjourn so
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that we may receive and consider the documents that are just
being bundled together at the back. I suggest we aim to
reconvene at quarter-past ten. If we have not already
managed to consider the documents then, obviously, we may
need a little longer. Are you content with that?
MS FOSTER: Yes.
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THE CHAIRMAN: We will now adjourn until quarter-past
ten.
(The Panel adjourned for a short time)
THE CHAIRMAN: Thank you very much for your patience.
Mr Tyson, we have now read the entire bundle that you sent
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us. Just on one aspect of the bundle, on page 73, we wanted
to check that we were absolutely correct, that there is a short
paragraph which has been taken out of the copy?
MR TYSON: Madam, that is correct.
THE CHAIRMAN: Thank you very much. Having
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interrupted or forestalled your opening while we received this
document, would you now like to proceed with your opening?
MR TYSON: Madam, before I do that, can I apologise on
behalf of the General Medical Council for any difficulties that
you and your fellow Panellists and also the Legal Assessor
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have had due to the none delivery of the bundle in a sensible
time. I do apologise for that on behalf of my clients.
THE CHAIRMAN: Thank you very much.
MR TYSON: Madam, this is a resumed hearing, ordered to
be heard, not by the original Professional Conduct Committee,
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who heard this case over nine days in June and August of
2004, but the fact that this matter had to come back for a
resumed hearing was, in fact, ordered by Mr Justice Collins in
a subsequent appeal.
First, to assist us all, can I take you to the procedure to be
applied in this case, which is an old Rules case, by virtue of
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the transitional provisions? Could I take you to old Rule 40,
please?
THE CHAIRMAN: I wonder if you can assist us by pointing
us to where it is in our folder? If you actually know?
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MR TYSON: Madam, I am afraid I am not familiar with your
folder.
THE CHAIRMAN: It is behind tab C, page 24 of 38. It is
headed, “Procedure at a resumed hearing”.
MR TYSON: Madam, that is correct. Can I read out sub-
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Rule 1?
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“Subject to the provisions of Rule 39, at the meeting at which
the proceedings are resumed, the Chairman of the Committee
shall first invite the solicitor…”
i.e. me.
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“…to recall, for the information of the Committee, the
position in which the case stands.”
That is what I start by doing. If I can take you to sub-Rule 3:
“The Committee may:
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(a) hear any other party to the proceedings.”
Can I indicate that this was originally a complaint case under
the old Rules and there was a complainant who I represented,
which was Mr Stephen Clark, who was the husband of Mrs
Sally Clark. If I can add now that I will say in more detail
later that Mr Clark has been consulted about this matter and
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the submissions that I make on behalf of the Council I also
make, as it were, on his behalf. He concurs with the
submissions as to the outcome of these events that I am going
to make.
Firstly, under sub-Rule 1, you have to hear the position in
which the case now stands, so I tell you about the original
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case. Secondly, under 3(b) you may hear:
“…such further oral or documentary evidence in relation to
the case, or as to the conduct of the practitioner since the
previous hearing, as they think fit.”
THE CHAIRMAN: Can I just interrupt you for a moment?
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One of the members of the public seems to be using a device.
There is a notice outside which asks you please not to use any
electronic equipment. If you have business within the
building then it would be more appropriate to be doing that
outside here. I would ask you to switch your device off
during the hearing, please? Mr Tyson, I am sorry to interrupt
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you. Can I just remind everyone that there is no recording of
proceedings during these proceedings and neither should they
be transmitted or broadcast during the hearing.
MR TYSON: Firstly, under sub-Rule 1 you are told about the
original hearing, if I can put it that way. Secondly, under sub-
Rule 3(b) you can hear about events in the public domain that
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have happened since.
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Madam, you then go into what you do under Rule 42:
THE CHAIRMAN: We have that in front of us.
MR TYSON: Your task then under Rule 42(1) is:
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“If at the previous hearing the Committee had directed that the
registration of the practitioner should be subject to conditions,
the Committee shall first judge whether the practitioner has
failed to comply with any of the requirements imposed on
him.”
Effectively, whether there has been a breach or not. Can I say
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straight away, that it is not alleged on behalf of the Council
that this practitioner has been in breach.
In those circumstances, you then come to sub-Rule 2, which
judge what you should do.
2(a) says:
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“If the Committee judge that the practitioner has not so
failed…”
We say that is the area we are in.
“…to comply they shall then consider and determine
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whether:
(i) to revoke the direction made at the previous hearing, that
the registration of the practitioner be subject to conditions ---;
or
(ii) to vary the conditions imposed under the direction made at
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the previous hearing
---; or
(iii) to make no further direction.”
Then sub-Rule 2(b) is the default position, if I can put it that
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way.
“If the Committee determine not to revoke the direction or
vary the condition or conditions imposed at the previous
hearing, or to allow the case to conclude as aforesaid, they
shall…”
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Madam, I underline the word “shall” as being mandatory.
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“…proceed to impose a further period of conditional
registration and shall consider and decide the nature of the
conditions and the further period not exceeding 12 months…”
Pausing there. Under the old Rules you could only go for a
resumed for 12 months rather than three years under the new
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Rules.
“…for which they shall apply, and shall so direct.”
Madam, that is the sub-paragraph where the GMC, if I can put
it that way, will be submitting to you that there should be a
further period of 12 months conditions. Those conditions
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should be the same conditions as Dr Southall has at the
moment. In addition, and further, the Council are submitting
to you that there should be a further resumed or a re-resumed
– I think is the technical expression . We use the word
“resumed” under the old Rules rather than “review” under the
new Rules. There should be a re-resumed hearing at the end
of the 12 months to consider what to do then, as it were - to
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put a forensic thermometer in the water to see what the
position is.
Can I say, as you have heard from my learned friend, that she
has indicated that Dr Southall does not oppose the
continuation of his current conditions for a further period of
12 months. Can I also say, and underline, of course, that it is
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the Panel’s decision to determine what is the appropriate
outcome in this case? My learned friend and I both readily
recognise that, that it is your function and not the function of
anybody else to determine what to do.
Can I start by taking you to the position in which the case now
stands. Can I ask you, whilst going through the facts, as it
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were, to have your “yellows” near you. If your “yellows” – if
I can put it this way – are the same as mine, you will find in
bold that the position of what was admitted and what was
subsequently found proved are set out in those “yellows”.
Can I start by saying that at the time that this case was heard
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in 2004 the doctor was a consultant paediatrician, working at
the North Staffordshire Hospital for what was then the North
Staffordshire Hospitals NHS Trust. He was also an Honorary
Professor of paediatrics at the University of Keele.
In November 2004, some months after the conclusion of this
case, the doctor retired from his Trust position albeit, I
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understand, that he continues to work for the Trust in a locum
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capacity. Upon such retirement his Honorary status as a
Professor ceased. Whilst all the references in the papers are to
Professor Southall, he is now, as it were, Dr Southall.
You will also have noted from the papers that the doctor and
others carried on using the title of Professor for some time
after November 2004. I think the circumstances in which that
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occurred are best explained by the two letters at the back of
your bundle, which perhaps I can now formally ask to be
named as C1.
THE CHAIRMAN: Yes You had already done so and we
had done so as well.
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MR TYSON: May I take you to the last document in your
bundle, page 75, which is a letter to the doctor in November
2006. It is said:
“I am writing to clarify your position with regard to your
Honorary Professorship at Keele University.”
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This is a letter from Keele University.
“Your Honorary status as Professor at the University ceased
on 30 November 2004 on your retirement from the Trust.
There is no Honorary Professorship associated with any
current employment that you may have with the Trust.
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I apologise that the University did not clarify this point with
you at the time. The University understands and recognises
that because you did not have any communication to the
contrary, that you assumed that the use of your title
continued.”
It is clear that it was not until November 2006, as that letter
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would indicate the matter, that he had ceased to be a
Professor, was not communicated to him by that organisation.
Just to wrap it up – if I can put it this way – I can only show
you the letter at page 74 addressed to those instructing me,
dated 4 July 2007, from Keele University, which indicates
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that:
“Dr Southall’s Honorary status as Professor at the University
ceased on
30 November 2004 on his retirement from the Trust. It was
not possible to offer an emeritus Professorship at Keele as Dr
Southall had not carried out research associated with the
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University for some time and, therefore, did not have an
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ongoing academic relationship with us.
We trust that this confirms the position in relation to Dr
Southall’s status and the circumstances in which he ceased to
be a Professor.”
Madam, by the time of the 2004 hearing the doctor’s work in
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the field of child protection had attracted much controversy.
This case was not – and I emphasise that – about the doctor’s
work in the field of Munchausen’s syndrome by proxy nor
about the areas of covert video surveillance of parents with
their infants. In both of which fields the doctor had done
much pioneering work.
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The case, in a nutshell, arose from the fact that as a result,
principally, of watching a Channel 4 TV programme about the
solicitor, Sally Clark, and her convictions for the murder of
her two infant sons, the doctor formed a theory about the case.
This theory was that Stephen Clark, Sally Clark’s husband,
had deliberately suffocated the eldest child, Christopher, in a
hotel room shortly before his death. As a result of that
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incident, it was clear to Dr Southall that Stephen Clark had
gone on to murder both his sons by suffocating them both.
In due course, Dr Southall went further and stated that it was
beyond reasonable doubt, i.e. to the criminal standard of
proof, that Mr and not Mrs Clark had committed these double
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murders.
It thus followed in Dr Southall’s logic that the Clarks’
surviving son, known only as
Child A - and I would be grateful if you could inform the
press that there are various Court Orders in existence that the
child should always be and continue to be known only as
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Child A. Dr Southall considered that Child A was unsafe in
the hands of his father and should be removed from the
father’s care, a step which, due to Dr Southall’s eminence and
stature, was actively considered by the local authority.
The background facts of this case, as you can see from the
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many admissions made in the “yellows”, were largely agreed.
The inferences from those facts, especially in heads of charge
6 and heads of charge 8 were denied. I will take you to those.
Heads of charge 6, as you will see, was the allegation that his
actions up to that stage were precipitate and irresponsible.
Those were matters of debate at the hearing. In relation to
paragraph 7, which set out what Dr Southall did in relation to
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a report that was commissioned of him, paragraph 8 indicated
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him, paragraph 8 indicated the allegations made by the
complainants at that time about him. Whilst the facts were
found proved the inferences of those facts, the inferences
which are set out in heads of charge 6, were not admitted but
were later found prove.
To give you some bare bones of the facts behind the heads of
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charge, they are these: Mr and Mrs Clark were both solicitors.
Their first son, Christopher, was born in September 1996.
A few weeks later Christopher was in the sole charge of Mr
Clark in a London hotel room. In that hotel room Christopher
suffered a nose bleed. Some nine days after the nose bleed
Christopher died unexpectedly at home, aged 11 weeks, when
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he was in the sole charge of his mother. His father being at an
office party. At that time natural causes were recorded as the
reason for the death. I think it was a lower respiratory tract
infection that was recorded.
The Clarks then had a second child, Harry, who was born in
November 1997. Harry died unexpectedly at home eight
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weeks later, in January 1998. As a result of his death matters
were looked at again in some detail. It was concluded then
that both children had been unlawfully killed. Both parents
were arrested. In the end only Mrs Clark was charged with
their murder in July 1998. In November 1998, after Mrs
Clark had been charged but before the criminal trial, she gave
birth to a third child, Child A. Child A was immediately taken
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into care at his birth with the agreement of the parents.
At this time, at the end of 1998, there were two sets of legal
proceedings. There were the criminal proceedings relating to
the unlawful killing of both the children and, secondly and
separately, there were childcare proceedings in the Child Care
Court relating to the future of Child A.
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In November 1999 Sally Clark was convicted of the murder of
the two children. That is head of charge 1. Turning for a
moment to Dr Southall. At that time he was an extremely
distinguished paediatrician with many ground-breaking
research articles to his credit. He had an interest, both clinical
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and research, in the area of sudden infant death syndrome.
Although, clearly distinguished, the doctor had acquired a
number of detractors, in particular, people, especially parents,
who were unhappy with his clinical and with his expert
evidence work in the field of child abuse. Also, a group of
people were unhappy with the nature and quality of his
research work.
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In January 1999 a formal complaint was made to his Trust by
one of his detractors. That complaint broadly revolved around
the twin issues of the doctor’s child protection practice and
around the issue of his research work. Whilst that complaint
was being investigated, the Trust placed limitations on Dr
Southall’s practice. In particular, he was ordered not to
undertake any child protection work without the written
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permission of the then acting Medical Director of the Trust.
Child protection work at that time included what was known
as Category I work. Category I work is work on patients of
the Trust. Category II work is work involving none patients
of the Trust, such as expert witness work and the like.
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In the course of the investigation of this complaint, which
took a considerable amount of time to resolve, in November
1999 Dr Southall was suspended with immediate effect by his
Trust. These matters, the suspension of Dr Southall and the
prohibition on child protection work were the subject of heads
of charge 5c and 5d in the original heads of charge. You will
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see that 5c reads:
“You were suspended from your duties by your employers,
the North Staffordshire Hospital NHS Trust.”
5d reads:
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“You knew that it was an agreed term of the Trust’s enquiries
that led to such suspension that you would not undertake new
outside child protection work without prior permission of the
Acting Medical Director of the Trust.”
In November 1999 we have these two events, the conviction
of Sally Clark and the suspension of the doctor. Madam, Mr
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Clark never accepted the Jury’s verdict about his wife. It is a
matter of record that he put in an enormous amount of work to
seek to overturn it. Part of that work involved agreeing to
appear in a television programme about his wife’s case, which
he hoped would help highlight deficiencies in the prosecution
case and would assist in her forthcoming appeal. This
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programme was made and subsequently broadcast by Channel
4 in its “Dispatches” series and it was broadcast on 27 April
2000.
In the course of that programme Mr Clark himself was
interviewed. He dealt with the event when Christopher, the
eldest child, had had a nose bleed in a hotel room whilst in his
H
sole care and shortly before his death. Dr Southall watched
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A
watched that programme and at a time when he was still
suspended from the Trust and subject to the condition that he
should not undertake any child protection work without
permission. In his own words, he was stunned by what he
saw. In a subsequent report, which I will come to in a minute,
he said:
B
“I was stunned when watching this television programme
since it appeared extremely likely, if not certain to me, that Mr
Clark must have suffocated Christopher in the hotel room. I
felt that the police had been misled into believing that Mrs
Clark could have suffocated Christopher before she left the
hotel and that the subsequent bleeding was a delayed
consequence of this. My experience with cases of intentional
C
suffocation, where there was nasal or oral bleeding, does not
concord with this view of the expert advice given to the
police. From my experience the bleeding always occurs
simultaneously with the process of intentional suffocation. I
was aware of a third child in the family who could be
receiving care from Mr Clark. Consequently, the next
morning, I contacted the Child Protection Division of the
D
Staffordshire Police to report my concerns.”
Madam, Dr Southall did duly contact the child protection unit
the day after the programme, and that is the matter set out in
head of charge 3. What he did not do was to contact the
acting Medical Director of the Trust beforehand to clear it
with her.
E
As a result of his contact with the local child protection unit
he was subsequently interviewed on 2 June by a Detective
Inspector from the Cheshire Constabulary to discuss his
concerns. What was discussed there is set out in paragraph 4
of the heads of charge, which says:
F
“As a result of such contact, on 2 June 2000, you met
Detective Inspector Gardner of the Cheshire Constabulary, the
senior investigating officer into the deaths of Christopher and
Harry Clark, and in effect told him that, as a result of
watching the programme, you considered that:
G
a.
Stephen Clark, Sally Clark’s husband, had deliberately
suffocated his son Christopher Clark at a hotel prior to his
eventual death.
b.
Stephen Clark was thus implicated in the deaths of
both Christopher and Harry Clark.
H
c.
There was thus concern over Stephen Clark’s access
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A
to, and the safety of, the Clarks’ third child, Child A.”
You will note that all those were admitted from the start.
Madam, it was only after that meeting that Dr Southall told
the Trust that he had become involved in a child protection
matter. When the Trust were informed they were most
B
concerned and, in fact, wrote to the doctor to that effect.
Thus, we had the position set out in head of charge 5:
“At the time of meeting Detective Inspector Gardner,
you:
C
a.
Were not connected with the case.
b.
Made it clear that you were acting in your capacity as
a consultant paediatrician with considerable experience of life
threatening child abuse.
c.
Were suspended from your duties by your employers,
D
the North Staffordshire Hospital NHS Trust (“the Trust”).
d.
Knew that it was an agreed term of the Trust’s
enquiries that led to such suspension that you would not
undertake new outside child protection work without prior
permission of the Acting Medical Director of the Trust.
E
e.
Had not sought permission of the Acting Medical
Director prior to contacting the Child Protection Unit of the
Staffordshire Police or meeting with Detective Inspector
Gardner.
f.
Relied on the contents of the “Dispatches” television
programme as the principal factual source for your concerns.”
F
Madam, pausing there. You will see that all those matters
were admitted at the start of the hearing. There was a matter
of controversy at “g”, that you:
“g.
Had a theory about the case, as set out in Head 4
G
above, that you presented as fact as underpinned by your own
research.”
You will see what the nature of the theory was, if we look at a,
b and c in head of charge 4. It was in relation to heads of
charge 3 to 5 that the adjectives at head of charge 6 were
alleged. It says:
H
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A
“Your actions as described in Heads 3 and/or 4 and/or
5 were:
a.
Precipitate.”
Madam, precipitate was found in relation to head of charge 3
and in relation to head of charge 5. It was also alleged that the
B
matters were irresponsible. Madam, that was only found in
relation to head of charge 5.
Head of charge 6c was not found proved in relation to any.
Madam, in July 2000 Mr Stephen Clark heard about Dr
Southall’s involvement in the case and complained officially
C
to the General Medical Council about such involvement.
Thus, under the old Rules, he was the complainant at the
hearing in 2004 and was there represented by me.
The local Authority involved in the childcare proceedings in
relation to Child A, the third child, also became aware of Dr
Southall’s views. That led to the Care Court to order that
D
Dr Southall set out his points of concern in writing and
thereafter discussed those matters with a Professor David.
Madam, Professor David is a well known paediatrician from
the University of Manchester who had been instructed by all
the parties in the Child A care case to assist them. He was
jointly instructed by the local Authority, by the guardian for
the child and by the parents to assist in the childcare case.
E
We are now coming to heads of charge 7 territory. Dr
Southall did not simply set out his points of concern, he wrote
a medico-legal report about his views on the case. The basic
contents of the report can be seen from heads of charge 7a to
f. Charge 7 says that:
F
“On 30 August 2000 you produced a report on the Clark
family at the request of Forshaws, Solicitors.”
Madam, pausing there for a moment. They were the solicitors
for the child. In care proceedings, when joint reports are
created, they are always at the request of the solicitors for the
G
child. If I can add that?
It says:
“a.
At the time that you produced your report you:
i.
Did not have any access to the case papers, including
H
any medical records, laboratory investigations, post-mortem
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A
records, medical reports
or x-rays.”
Pausing there for a moment. That was a part of the Court
order, that he should simply set out his concerns without
access to any of the case papers and, in particular, any of the
medical records.
B
“ii.
Had not interviewed either Stephen or
Sally Clark.
b.
Your report concluded that:
i.
It was extremely likely if not certain that Mr Clark had
C
suffocated Christopher in the hotel room.
ii.
You remained convinced the third child of the Clark
family, Child A, was unsafe in the hands of Mr Clark.
c.
Your report implied that Mr Clark was responsible for
the deaths of his two eldest children, Christopher and Harry.
D
d.
Your report was thus based on a theory that you had
about the case that you presented as fact as underpinned by
your own research.”
Pausing there for a moment. All the previous matters had
been admitted and found proved but 7d was found proved at
E
the hearing.
“e.
Your report declared that its contents were true and
may be used in a court of law whereas it contained matters,
the truth of which you could not have known or did not
know.”
F
Madam, at the hearing, the first line and a half of that was
admitted, namely:
“Your report declared that its contents were true and may be
used in a court of the law.”
G
That the standard, as it were, expert witness’s declaration was
used in that report. What was denied but found proved at the
hearing was:
“Whereas it contained matters, the truth of which you could
not have known or did not know.”
H
Then:
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A
“f.
Your report contained no caveat to the effect that its
conclusions were based upon very limited information about
the case held by you.”
That was admitted. It is admitted that there was no caveat.
Madam, the report was dated 30 August 2000. On 8
B
September 2000 a discussion as ordered by the Care Court
took place between Professor David, the jointly instructed
paediatrician in the care case, and Dr Southall. In the course
of that meeting Dr Southall told Professor David, in relation to
his suspension, that his work in the Clark case was merely as a
concerned member of the public rather than as a paediatrician
or as a doctor.
C
He told Professor David that he had come to the conclusion
that the Court had convicted the wrong person and that a child
was in danger as a result of living with the true killer.
The central prop of Dr Southall’s theory was:
(1)
Nose bleeds occur immediately after trauma.
D
(2)
The only cause of a nose bleed at that age, in
the absence of pre-existing disease, was
inflicted trauma.
(3)
As Mr Clark was alone with Christopher in the
hotel room when Christopher had the nose
E
bleed such bleed must have been caused by his
father.
(4)
Therefore, Mr Clark unlawfully killed
Christopher a few days later and then Harry a
year or so later.
F
This was the theory that was based principally on the
watching of the television programme and without access to
any of the case papers in the case.
Professor David was concerned that nowhere in Dr Southall’s
report was there any sort of warning or note of caution that his
G
opinion could only have been based on the most scanty of
information, the main source being the television programme.
Madam, the lack of caveat is head of charge 7f, which I have
read to you.
Professor David assumed that the lack of any caveat was
simply an oversight and so Professor David e-mailed Dr
H
Southall and suggested that he inserted a caveat. As was later
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A
noted, Professor David was thus effectively providing Dr
Southall with a lifeline but the lifeline was not accepted. Dr
Southall e-mailed back on 11 September 2000 and the e-mail
stated:
“I had thought through the issue of whether there might be
other evidence not seen or heard by me which makes it
B
impossible or very unlikely that Mr Clark killed the two
children. I should say, and should have put in my report, that
I had undertaken a number of discussions with people
involved in the case after seeing the video, namely Mr
Gardner, the guardian and the senior social worker, and had
asked questions relating to other possible but extremely
unlikely mechanisms for the bleeding and scenarios which
C
would enable rejection of my opinion. I received negative
answers to these questions. These were, in particular, whether
any disease had been present in the first baby that might have
caused the death that was not reported on the television
programme. Also, any other information relating to the case
that made Mr Clark’s involvement impossible.
D
My only smallest reservation relates to an extremely unlikely
prospect that both parents are implicated in the deaths. I have
never seen before this and, therefore, rejected it.”
Then we come to the matter which is subject of head of charge
7g:
E
“Thus, there can, in my opinion, and beyond reasonable
doubt, be no explanation for the apparent life threatening
event suffered by the first baby, which would account for the
bleeding other than that the person with the baby at the time
caused the bleeding through the process of intentional
suffocation. The subsequent unexplained deaths of the babies
with other injuries makes it likely beyond reasonable doubt
F
that Mr Clark was responsible. I am not used to giving
opinions without all of the evidence being made available and
feel vulnerable over my report. However, based on what I
saw in that video alone and my discussions with the police
officer, social worker and guardian, I remain of the view that
other explanations cannot hold. The evidence of the family
G
friend is particularly important.”
Madam, that is the subject matter of head of charge 7g. The
PCC found the matters at head of charge 8 proved in relation
to the matters concerning the writing of this report and the
doctor’s rejection of Professor David’s lifeline.
H
Submissions were made on serious professional misconduct
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A
and on sanction. In the course of which, it was pointed out
that the doctor had shown no remorse, had not apologised and
still considered that he was right. It was submitted that the
doctor had little or no insight especially as he had admitted
head of charge 7f and g and yet had not admitted any of the
consequences said to follow, in head of charge 8.
B
Therefore, there came a determination thereafter on the ninth
day of the hearing. Madam, that determination is in the
bundle of documents at page 1 to 6. It is also in the
“yellows”. Madam, I seek your guidance as to whether you
want me, as a matter of form, to read that into the record, as it
were, or whether it can lie where it falls?
C
THE CHAIRMAN: The evidence is not only what is spoken
but also the evidence that you have presented to us in writing.
I do not consider it is essential for you to read it into the
record because it is already in the record, having been
presented to us. Unless the Legal Assessor tells me any
different, that is the way I propose to proceed.
D
THE LEGAL ASSESSOR: No. I absolutely agree with what
the Chair says, so far as that matter is concerned.
MR TYSON: Can I just highlight, therefore, out of that, that
the Committee twice used the phrase “extremely concerned”.
Also, they used the phrase that they considered that the
doctor’s conduct amounted to a serious departure from the
E
standards expected from a registered medical practitioner.
Madam, if you want the references to that, the first reference
to “extremely concerned” is on page 2, at the top of the
penultimate paragraph and over the page, on page 3 of the
bundle, in the first main paragraph:
“The Committee are extremely concerned that you came to
F
this view without ever meeting or interviewing Mr or Mrs
Clark.”
Madam, in relation to the use “serious departure”, that is on
page 4 of our bundle, at the top of the first big paragraph:
G
“Taking into account the facts found proved against you,
including inappropriate and irresponsible behaviour and an
abuse of your professional position, the Committee consider
your conduct amounts to a serious departure…”
Then, can I take you to the bottom of page 5, please? It says
right at the end:
H
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“In the circumstances, the Committee have concluded that in
your own and the public interest it must take action regarding
your registration. Based on the findings on facts in this case
and your apparent lack of insight the Committee have decided
that it would be inappropriate for you to continue with child
protection work for the foreseeable future.”
B
It is those words that I would like to highlight.
“Therefore, the Committee have decided to impose the
following condition on your registration for a period of three
years:”
Can I just add that that is the maximum that they could have
C
done at that time and, indeed, now.
Madam, as you will know, the body then known as the
Council for the Regulation of Healthcare Professionals, or in
the acronym CRHP, did, in fact, appeal the decision, saying
that the decision to impose conditions only in this case was
unduly lenient.
D
The matter came before Mr Justice Collins in March 2005.
There is a transcript of the Judge’s judgment at pages 10 to 31
in C1. Madam, you are at liberty to study that when you
retire. I will not go into it in any detail, unless my learned
friend asks me to do so, in view of the fact that she told your
Panel that the doctor was not opposing the continuation of the
E
conditions. However, I do need to take you to one or two
passages.
Broadly speaking, I can take you to the bundle at page 22. If I
can just indicate that paragraphs 22, 23, 24 and 25 are
effectively a repeat of my submissions that I had made before
the Panel.
F
Can I pick it up at paragraph 29 on page 26, please? Madam,
Dr Chipping was the acting Medical Director of the Trust at
the time. As a matter of fact, she was called twice in the
course of the hearing. First, by me, at the finding of fact
stage, to assist us on findings of fact and, secondly, by my
G
learned friend then representing Professor Southall, as he then
was, in mitigation, to indicate what kind of arrangements
could be made at the hospital that would make some sort of
conditions possible; so she appeared twice.
MS FOSTER: Forgive my interruption. For some obvious
reasons I have not marked up the transcript in the bundle I
H
have just been handed. I have it separately marked. Would
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you be kind enough to refer to paragraph numbers when you
refer to the body of it?
MR TYSON: I thought I had been. Paragraph 29.
MS FOSTER: You said page a couple of times.
B
MR TYSON: I said page 22, paragraph 22, which is the
same, and paragraph 29.
THE CHAIRMAN: It will be helpful for all of us if you give
us both the page and the paragraph.
MR TYSON: I will certainly do both. I appreciate the
C
difficulties that people have been in because of the late notice
of this document.
I need to pick it up at paragraph 29 on page 26. I was
indicating that that paragraph starts with “Dr Chipping”. I
was explaining that Dr Chipping appeared twice in the course
of the hearing.
D
“Dr Chipping was also asked about insight. She gave
this answer:
‘I would not subscribe to the fact that he does not have any
insight. I think he has good insight, but I think he is a man
who does not change his mind easily, and I think that is a
E
slightly different thing. One of the things --- I am sure will
have come out in the testimonials is that Professor Southall is
actually a man of great principle. He will not change his mind
if he does not think his mind should be changed. Does he
have an insight into the impact he has on others? – I think he
probably has a better insight than he did earlier in his career,
yes.’”
F
The Judge goes on to say, in his words:
“I can understand the distinction being drawn, but a refusal to
change his mind despite circumstances which should tell a
reasonable person that his view is wrong is a serious weakness
G
which can lead to a risk to patients and others in the same way
as a lack of insight.”
Madam, I go on to paragraph 30 at the bottom of page 26:
“Absence of remorse and contrition is likely to be indicative
of a lack of insight or of maintenance of unreasonable views.
H
In either event, it may show that a risk of repetition exists.
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A
This is clearly relevant in deciding on the appropriate
sanction, but lack of remorse should not result in a higher
sanction as punishment. Punishment may be an inevitable
effect of whatever sanction is imposed but it must not be an
element in deciding what is the appropriate sanction. The
PCC must decide whether the risk of repetition does really
exist.”
B
Madam, can I take you on to paragraph 35, at the bottom of
page 29?
“For Professor Southall preclusion from child protection work
was a severe penalty. His reputation had to a great extent
been built on his pioneering work in this field and it must have
C
been a humiliation to him to have been found guilty of serious
professional misconduct in connection with child protection.
The PCC did, as it seems to me, have regard to all material
matters and it cannot be said that they misdirected themselves.
They were, as I have already said, entitled to consider that
there was no real risk that the condition excluding him from
child protection work would be broken. The flaws disclosed
D
by Professor Southall’s misconduct, serious though they are,
do not prevent the view reasonably being taken that they
should not prevent him continuing to practise as a
paediatrician, provided that there is no real risk to patients or
others if he is permitted to do so. Thus, erasure was not, in
my view, an inevitable result of the misconduct which the
PCC found proved. A reasonable observer would appreciate
E
that the sanction was for him severe indeed and that it would
produce a [significant]
(sic) deterrent effect and send out the
right message. As the testimonials showed, it was in the
public interest that Professor Southall’s great skills as a
paediatrician should not be lost, if that could be achieved
without danger to the public. The PCC’s decision that it could
be achieved seems to me to be entirely reasonable in all the
F
circumstances.”
I read part of paragraph 36:
“It was, however, essential that the conditions imposed should
be tightly drawn so as to prevent any involvement in child
G
protection work. The PCC stated that it would be
inappropriate for Professor Southall to continue with child
protection work ‘for the foreseeable future’. It imposed the
maximum period over which the condition could apply,
namely three years, which is hardly the foreseeable future.”
That is the passage upon which the Council relies.
H
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Can I take you to paragraphs 37 and 38, to be found on page
30, please?
“In the light of the findings and the seriousness of the
misconduct, it seems to me that the PCC ought to have given
an intimation in accordance with Rule 31(5) to enable
Professor Southall’s conduct to be kept under review and for a
B
decision to be made at the end of the three year period
whether any condition should be maintained.”
Pausing there. That is the position we are now in.
“I also think the conditions could be drawn more tightly so
that it is made clear that all that Professor Southall can do, if
C
he believes a patient may have suffered abuse, and is in need
of protection, is to report his concerns to the relevant child
protection doctor. He must not involve himself beyond that
nor seek to influence that doctor to take any particular action.
Such conditions must be imposed in respect of any Trust for
which he works and must equally be applied if he does any
Category II work.”
D
Paragraph 38:
“It follows that I do not think that to impose conditions upon
Professor Southall’s registration was unduly lenient. Erasure
was not required but the PCC did, in my view, show undue
leniency in the form of the condition and in failing to give an
E
intimation in accordance with Rule 31(5).”
Madam, as a result of that, an order was drawn up, which you
have at pages 32 to 34. This is the order, the conditions of
which, you are reviewing today. Madam, I can pick it up at
the top of page 33 at paragraph 3. The conditions are these:
F
“The Second Respondent…”
That is Dr Southall.
“…must not engage in any aspect of child protection work
either within the NHS, (Category I) or outside it (Category II)
G
for a period of three years from 7 September 2004.”
That is the first condition. The second condition is this:
“If, during the course of his medical practice (whether within
or outside the NHS
and whether clinical or research-based)
or otherwise, the Second Respondent forms any concerns on
H
child protection issues in relation to a particular child or
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child or children (whether or not his patient and whether
deriving from any formal or informal approach to him
concerning child protection issues) he must:
(a)
Report those concerns as soon as possible to the most
senior child protection doctor working for his employer (or to
the person responsible for child protection at the relevant local
B
Primary Care Trust) who is on call at the relevant time (the
‘child protection doctor’); and
(b)
Not take any further steps or have any involvement
whatsoever in relation to any consideration, steps or actions in
any way connected to such concerns or initiate any
communications with, or seek to influence in any way
C
whatsoever, that child protection doctor or any other person or
body in relation to such concerns.”
Pausing there a moment. You can see that this was drafted by
a lawyer rather than a doctor.
The next condition is this:
D
“For the remaining duration of these conditions, at intervals of
six months starting from the date of this Order, [Dr Southall]
must provide to the [General Medical Council] full details of
any cases (whether involving an individual or individuals) in
respect of which he has reported concerns in accordance with
4 above or, alternatively, confirm that there have been no such
E
cases during that interval.”
The next condition is:
“The Second Respondent…”
i.e. Dr Southall.
F
“…must inform his current employer and any subsequent
employer (or relevant local Primary Care Trust) of the
existence and terms of 3, 4 and 5 above.”
Then paragraph 7:
G
“Pursuant
to…”
The Rules there mentioned:
“…consideration of [Dr Southall’s] case is to be resumed at a
meeting of a Fitness to Practise Panel of the [General Medical
H
Council] to be attended by [Dr Southall], before the end of the
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A
the three year period specified in 3 above for the purpose of
considering whether to take further action in relation to [Dr
Southall’s] registration.”
That is the stage we are at now.
“(a)
[Dr Southall] should be given reasonable notice of the
B
date of the resumed hearing.
(b)
A reasonable time before the resumed hearing [Dr
Southall] should provide the [General Medical Council] with:
(i)
Evidence of compliance with 3-6
above; and
C
(ii)
Names and addresses of professional colleagues and
persons of standing to whom the [GMC’s] Registrar may
apply for information as to [Dr Southall’s] conduct since the
relevant decision.”
Madam, that Order was served on Dr Southall. I just mention
D
that it is at page 9. He was given further instructions of what
to do by the GMC later, on page 36.
As a result of the Court Order the doctor and his Medical
Director met to discuss the implementation of these
conditions. We can see that at page 35.
E
THE CHAIRMAN: Can I just say that for anyone who is not
certain whether they have got the numbers on some of these
letters? The GMC’s number overprinting on the bundle is
difficult to distinguish because it appears in the middle of a
little printed logo from Keele University Medical School.
That is just in case anyone is confused. Mr Tyson, I am sorry
to interrupt you.
F
MR TYSON: Madam, I also do apologise for the fact that the
numbering is on the same as the Keele footer – if I can put it
this way – and is immensely irritating. It is document number
4 at page 35. It is a letter to the practitioner from his Medical
Director, dated
G
2 June. It reads:
“Thank you very much for coming up to meet with me at
Trust Headquarters this morning to discuss the Court Order
made by Mr Justice Collins in the Administrative Court. I
was accompanied at the meeting by…”
H
The lady there mentioned.
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“You demonstrated the cases that you have currently seen
where you had suspicions regarding both child protection
issues and also cases of children in need. In all of these cases
referrals have been made to consultant colleagues along the
lines laid down in the Court Order. Both [the Director of
Human Resources] and I felt that the format used was an
B
entirely appropriate means of recording the information that
you will need to feed back to the GMC. We did, however,
suggest that it would be helpful if you cold obtain the counter-
signature of the consultant taking over the case, to
demonstrate to the GMC that the referral had been made. We
also felt that it would be helpful to review the cases with Dr
Kate Reynolds, as Head of Division, and also Trust lead for
C
Child Protection, every six months before submitting the data,
which will need to be anonymised, to the GMC.
As promised, therefore, I am setting this out in writing so that
the Trust’s position is made clear and you can demonstrate to
the GMC that you have discussed this matter in detail at the
highest level within the Trust. If there are any other matters
D
which you wish to draw to my attention around this Court
Order in the future, please do not hesitate to contact me.”
It is quite clear that the first condition was complied with,
namely he told his employer about the Order.
Then we come to the six monthly written reports. The first
E
written report made by the practitioner, we see at page 39. As
we are interim, six monthly reports – if I can put it that way -
from the practitioner to the General Medical Council:
“I can confirm that I have not been engaged in any aspect of
child protection work either within the NHS category 1 or
outside it, category 2, since the 7 September 2004.
F
I also have informed my employer of the existence and terms
of conditions 1, 2 and 3 as outlined in your letter and enclose
a copy of a letter received from my hospital’s Medical
Director, following a meeting I arranged with her further to
discuss these issues.”
G
Madam, that is the letter I just read out to you, at page 35.
“I can confirm that I am also collecting data on all potential
cases of child protection that I come into contact with as an
acute general paediatrician. I have a system that is outlined in
the letter from Dr Chipping to deal with this. Meanwhile, I
H
will let you have some more information about the various
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cases that I have referred on in time for your first six month
review on the 13 October.”
Madam, the first such letter that the practitioner sent is on the
next page, page 40 to 41.
THE CHAIRMAN: Mr Tyson, can I just reassure you that we
B
have read all these documents? I do not want to constrain you
in any way, but in case you fear that you have to read them all
to us.
MR TYSON: I am grateful. The first letter sets out the
details of seven children with whom he had been involved in
that may or may not have raised child protection issues, and
C
on each and every one of these he had referred them on, as
instructed. The fact that he had referred them on was
confirmed by his Medical Director at page 42.
At page 43 the Medical Director - at the top of that e-mail -
also confirmed that the practitioner was not taking part in
either Category I or Category II work.
D
On the next six months review, April 2006, at page 46, Dr
Southall set out two cases which he had referred on, and that
was confirmed by the Medical Director, at page 48.
The next review, in October 2006, we see at page 50, where
he set out two cases that had been referred on and the fact of
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such referring on was confirmed by his Medical Director at
page 51.
Then the next review is April 2007 and we can see that at
page 64. The doctor set out, at page 64, the one case in that
six months review that he had referred on and that was
confirmed by his Medical Director at page 65.
F
To bring us up-to-date to July, we have the practitioner’s letter
at page 72, which indicates that since April he has not referred
on any patients. We have confirmation of that, in the letter at
page 73, from his Medical Director.
G
Madam, in the light of those six monthly reports and other
matters, I confirm that the GMC is not submitting that there
has been any breach of Dr Southall’s conditions.
If we go back to page 33, the condition at paragraph 3 has
been complied with. The conditions at paragraph 4 have been
complied with. The condition at paragraph 5 has been
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complied with. The condition at paragraph 6 has also been
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complied with.
In addition, the Order required that Dr Southall provide
references. We can see that at page 34, that he had to provide
the names and addresses of professional colleagues and
persons of standing to whom the GMC could apply for
information. Four references have been provided. The first is
B
by Dr Parke at page 68. Madam, I will take your guidance as
to whether you want me to read these, as it were, into the
record or you have noted them.
THE CHAIRMAN: We have noted them.
MR TYSON: The second reference is from Dr Reynolds, at
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page 69. The third reference is from Dr Negrycz, at page 70.
The third
(sic) reference is from Dr Chipping at page 71. I
will be coming back to some of the aspects in that reference in
due course.
THE CHAIRMAN: That will be the fourth reference?
D
MR TYSON: Yes. Is that not what I said?
THE CHAIRMAN: No. You said the third again.
MR TYSON: I apologise. The fourth reference is from Dr
Chipping at page 71.
E
Madam, those are my submissions on behalf of the General
Medical Council under Rule 41, namely the position in which
the case stands.
I now come to my submissions under Rule 40(3)(b), which is
to deal with other matters that have taken place since that
Panel. If I can remind you – if you need reminding – as to the
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wording of Rule---
THE CHAIRMAN: I think we just need to make sure that we
are looking at the right one. Yes, I have it. 40(3)(b).
“To receive such further oral or documentary evidence…”
G
MR TYSON:
“…in relation to the case…”
THE CHAIRMAN:
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“…in relation to the case.”
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MR TYSON: Yes.
“…or as to the conduct of the practitioner since the previous
hearing, as they think fit.”
That is the stage.
B
Madam, there are three matters in which I am going to draw
the Panel’s attention under this head. I will come to these in
more detail later. The first is that there is another misconduct
Panel hearing taking place at the present against Dr Southall.
It is part-heard. 16 days of evidence have been heard in
November and December 2006. It has been adjourned
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part-heard until November and December 2007 for a further
25 days.
The second matter I need to deal with is that the Attorney
General has made a statement in the House of Lords about a
great number of medical records kept by Dr Southall on his
patients that were not on the respective childrens’ hospital
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records. These were Dr Southall’s own records, known as
special cases files.
Thirdly, the South Wales police are investigating a matter in
which Dr Southall may or may not be concerned.
Can I deal with these in turn? Madam, you have the heads of
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charge in relation to the part-heard case at pages 52 to 60.
Madam, can I say that, again, this is an old Rules case and it is
a complainant case. The complainants are five parents. The
complaints cover a wide range of issues. Can I say, for the
sake of the record, on page 53 at head of charge 2, that was
subsequently amended to read the words “from 1992” and
then insert the words “and at all material times” then, “You
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have been Professor of paediatrics”.
It was also amended in relation to head of charge 15b at page
55 in a way that, at the end, it said, “or the North Staffordshire
Hospital” it should say, “for Child D and Child B”.
G
THE CHAIRMAN: And Child B?
MR TYSON: Yes. Madam, heads of charge 10 to 16 concern
the allegation that
Dr Southall held his own files on patients, separate from main
hospital records. These special cases files, as they were
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called, are in both paper form and held on Dr Southall’s
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computer. It came to light in the part-heard hearing that there
were over 4000 of these special cases files.
Madam, the hearing has gone part-heard with a gap of a year
principally – and I hope he does not mind me saying this – as
leading Counsel then representing and continuing to represent
Dr Southall has become, and is currently occupied in the long
B
running MMR case, which is being heard in a Panel hearing in
London. Madam, that case is part-heard. I do not rely on any
of the matters alleged in it against Dr Southall in that case as
implying breach in this case. If I can put it this way - the
matter is ongoing.
The relevance of mentioning it to you is merely to point out
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the existence of this case, as it is in the public domain.
Secondly, we submit that it has relevance as to whether and to
what extent the current conditions should continue over.
Madam, the second matter I mention as an aspect of
relevance, and it arises out of the evidence of the part-heard
case about the special cases files. The Attorney became
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concerned about the existence of the special cases files and he
made a statement in the House of Lords about them and issued
a Press statement about them, which you will see at pages 60
and 61
(sic). Again, you will see what is there said at pages
61 and 62. You will see that he announced that he was going
to investigate these 4450 special cases files in view of the
matters therein mentioned. If you want me to read it into the
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record I will but you will note the current state of that
investigation is set out in a document I hope you have at page
62A.
THE CHAIRMAN: We have.
MR TYSON: You will see that his review is ongoing. They
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have reviewed a great number of files and they are being
investigated further. Any further announcement relating to
the matter will be announced to Parliament rather than to this
Panel.
In relation to the third matter, all I can say is that the South
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Wales police are investigating a matter involving a child and
Dr Southall in about 1993 and that investigation continues.
Madam, I next come to your role under Rule 42 which, to
remind you, is that you have first got to judge whether he has
failed to comply. If, under Rule 42(2), you decide he has not
so failed to comply - that is precisely that we are in here. I am
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not alleging that he has failed to comply – then you consider
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consider the matters in (a) (i), (ii) and (iii) and, in particular,
the default position which is at (b), which is where the
Council’s submissions arise from.
If I can remind you of the Council’s position, it does not
allege that the doctor has failed to comply with any of the
requirements imposed on him as a condition of his
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registration. It is submitted by the Council – and this stance is
supported by Stephen Clark, the original complainant – that
you should adopt the Rule 42(2)(b) route and continue
conditions for a further 12 months. It is also the Council’s
submission that there should be a further Rule 31(5)
resumption of those conditions by the end of those 12 months,
so broadly, 12 months plus a review. I think you can now call
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that 12 months plus a re-resumed.
Madam, as my learned friend has indicated that she is not
opposing that course of action, I take the reasons for the
Council’s submissions shortly, and there are broadly nine of
them.
D
Firstly, we would submit that there has been no substantial
change in Dr Southall’s position. He still thinks that he was
right to do what he did. Thus, we submit, he shows a
continuing lack of the necessary insight or is a man who does
not change his mind easily. We rely on the passage of Mr
Justice Collins at paragraph 29 of his judgment at page 26,
which I read out to you earlier.
E
Secondly, we submit that the original offences were very
serious indeed and were regarded as such by the PCC. Twice
they used the words “extremely concerned” in their
determination.
One can see that the PCC found that Dr Southall had acted
precipitately on two separate occasions, that he had acted
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irresponsibly on two separate occasions and that he had also
acted inappropriately, misleadingly and had abused his
professional position.
Thirdly, we would submit that the doctor has shown no
remorse for his actions, no contrition and has yet to offer any
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apology to Mr Clark, even with the benefit of hindsight.
Fourthly, the PCC took the view that Dr Southall’s conditions
should be for the foreseeable future. That is in the
determination at the bottom of page 5 and the top of page 6.
They then made it subject to the maximum period of three
years.
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Fifthly, Mr Justice Collins took up this point at paragraph 36
of his judgment on page 30, where he said that three years is
hardly the foreseeable future.
Sixthly, it was for this reason that the Judge increased the
penalty to order a review after three years, this one, so that, in
our submission, active consideration can be given to
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extending the conditions. He also, as we have seen, tightened
up the conditions themselves.
Seventhly, we submit that the public interest and the
protection of the public requires, we submit, that whilst other
serious matters are being investigated in relation to this
doctor, the public should continue to be protected by the
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retention of the current conditions. We would submit that
there are continuing concerns about this doctor.
Eighthly, I come to the points raised in Dr Chipping’s
reference letter, at page 71. Perhaps, I could ask you to open
that up and remind you of its terms? The first point I make in
relation to those letters, you see that the current system at the
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hospital dealing with the working of the conditions has, as Dr
Chipping says in the top of the second main paragraph,
“worked well”. “The system has worked well”. I readily
concede that it may have caused some practical difficulties but
those difficulties have been overcome. The system is working
well. Thus, there is no reason to change or vary the
conditions in that they are impracticable; they clearly are
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practical and are working.
Secondly, as we see in the bulk of that second, main
paragraph, Dr Chipping herself does not believe that Dr
Southall:
“should be undertaking specialist child protection work at this
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stage since he has not been involved in this field now for the
last eight years.”
Just pausing there. You will recall that Dr Southall was
ordered not to do any child protection work by his Trust in
1999. He has not done so since despite his subsequent
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re-instatement by the Trust in October 2001, when all the
complaints against him to the Trust were rejected.
The point I make, in support of my submissions, is that even
his own Trust are not looking to the removal or revocation of
all the conditions.
H
Lastly, it would appear - and I anticipate that we will hear
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more of this - that Dr Southall’s professional life has, as it
were – to use the jargon – moved on. As I understand it – and
I will be corrected if I am wrong – he does most of his work
for the Trust in one week out of four. As I understand it, a
considerable amount of his other time is spent in charity work
for children and infants abroad. The current conditions do not
preclude that doubtless, important and worthwhile work.
B
Madam, lastly, I need to make reference, but reference only,
to your two “bibles” – if I can put it that way. The first
“bible” is
Good Medical Practice. The relevant edition of
Good Medical Practice in this case is the July 1998 version.
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THE CHAIRMAN: It is behind tab 3.
MR TYSON: Madam, I can deal with them by way of
paragraph numbers only. I will not expand on the points
being made but I draw the Panel’s attention to paragraph 3,
the third dot in relation to the possible “diagnosis” that Mr
Clark and not Mrs Clark was responsible for these matters.
D
THE CHAIRMAN: I am sorry. I thought you were about to
read out paragraph 3.
MR TYSON: I said that it is paragraph 3, the third dot.
THE CHAIRMAN: This is on page 2?
E
MR TYSON: Madam, it is the bottom of page 2. I say that
was relevant in relation to the wrong “diagnosis” that Mr
Clark was responsible for the deaths.
I also draw your attention to paragraph 7 on page 4, at the
second dot of that. In relation, we would say, that he did not
F
respond constructively to Professor David’s lifeline but, as it
were, destructively by hardening his view. I also point, again,
to paragraphs 16 and 17 in the matter of dealing with
complaints constructively in offering apologies, but those are
dealt with in more detail in the Indicative Sanctions, which I
will come to in due course.
G
The last matter from the relevant
Good Medical Practice that
you ought to be aware of, as the previous Committee were
made aware of, is in relation to page 17 at paragraph 55,
relating to the signing of documents. The submission was
made where it says in the penultimate sentence,
H
“You must take reasonable steps to verify any statement
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before you sign a document.”
This relates to the statement of truth attached to the report of
August 2000 where we would say, in view of the matters set
out in that report, Dr Southall failed to take reasonable steps
to verify the matters that he there dealt with.
B
Madam, that is, in headline terms, the relevant
Good Medical
Practice.
I now come, lastly, to the Indicative Sanctions Guidance.
Madam, I am going to use the April 2005 Guidance even
though at the time that this matter came before the Committee
on the last occasion, it was the May 2004 Guidance that was
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in force.
THE CHAIRMAN: I am now consulting the blue folder,
behind tab D. That is the April 2005 Guidance.
MR TYSON: Madam, I say that this document has limited
assistance to you in your task today for two main reasons: It
D
is based on the new Rules rather than the old. We are not
dealing in terms of impairment or the like here. You do not
have to have a two stage hearing today. You only have to
have one determination. You do not have to go down the
impairment route.
Secondly, it tends to deal with procedure at the original
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hearings rather than any review hearings.
For the avoidance of doubt, can I draw the Panel’s attention to
paragraph 13 on page S1-3?
Reminding the Panel that the matters you should consider
cover the protection of the public and public interest and that
public interest includes:
F
“a.
Protection of patients.
b.
Maintenance of public confidence in the
profession.
G
c.
Declaring and upholding proper standards of
conduct and behaviour.
Madam, in our submissions to you today, each and every one
of those applies and is relevant to the continuation of the
conditions.
H
Paragraph 16 makes the important point about proportionality.
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proportionality.
Paragraph 17 makes the important point that they are not
meant to be punitive but to protect patients.
Paragraph 19 makes equally important points about the
appropriate sanction. It is a matter for you but you must:
B
“a.
Be sure that the action it proposes to take is sufficient
to protect patients and the public interest.
b.
Act within the framework set out by the GMC
and reflected in this document.
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c.
Give reasons…”
Paragraph 22 deals with conditions. Of course, paragraph 22
does not help you to the extent that these are not, under the
old Rules, renewable up to 36 months but they are only
renewable up to 12.
D
It makes the point, importantly, in the last sentence of
paragraph 22, that:
“A purpose of the imposition of conditions is
protection of patients.”
At the beginning of paragraph 23 says:
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“Conditions might be appropriate where there is
evidence of incompetence…”
I am not alleging that, but we are alleging:
“…significant shortcomings in the doctor’s practice.”
F
The bottom of paragraph 24 makes the points that:
“Any conditions should be appropriate, proportionate,
workable and measurable.”
G
We would submit that the current conditions fulfil all those
descriptions.
Madam, it gives some guidance about review hearings, called
under the new Rules, at paragraphs 31 and 32.
Paragraph 32 says:
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“It is important that no doctor should be allowed to resume
unrestricted practice following a period of conditional
registration or suspension unless the Panel can be certain…”
That is a very high word.
“…that he or she is safe to do so. In some misconduct cases it
B
may be self-evident that following a short period of
suspension, there will be no value in a review hearing. In
most cases, however, where a period of suspension is imposed
and in all cases where conditions have been imposed the Panel
will need to be reassured that the doctor is fit to resume
practice either unrestricted or with conditions or further
conditions. The Panel will also need to satisfy itself that the
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doctor has fully appreciated the gravity of the offence, has not
re-offended, and has maintained his or her skills and
knowledge and that patients will not be placed at risk by
resumption of practice or by the imposition of conditional
registration.”
Madam, it is the matters related to in that last sentence that are
D
important, which is why the Council submits to you that (a)
the conditions should continue, and (b) they should be subject
to a further review or resumed hearing in light of the matters
set out in that paragraph. Of course, in relation to maintaining
his or skills and knowledge, we rely on the passage in the Dr
Chipping letter that I have read to you.
E
Madam, finally, we have some guidance on the factors
involved in conditional registration. The factors required are
on page S1-13: Of the factors present we would say possibly
the first; certainly, the second, certainly the fourth, the fifth is
not relevant, the sixth is present, the seventh is present and the
eighth is present. Going down that critical path, certainly
most of the factors for conditional registration can be said to
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be present here.
Madam, you are given some supplementary guidance at S2-4.
I draw your attention to paragraph 18 about “Expressions of
regret and apology”:
G
“Good Medical Practice states that when things go
wrong, doctors:
‘…Should act immediately to put matters right, if that is
possible and …must explain fully and promptly to the patient
what has happened and the likely long and short-term effects.
---‘
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This reflects a number of expectations on behalf of the
profession and the public, including that:
a.
Patients should be protected from similar
events re-occurring, and
b.
Doctors should take positive steps to learn from their
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mistakes, or when things go wrong.
Good Medical Practice continues:
‘when appropriate…offer an apology’ ---
reflecting that in this society, it is almost always expected that
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a person will apologise when things go wrong. However, the
emphasis on ‘when appropriate’ reflects the fact that to some
individuals (and this may or may not depend on their culture),
offering an apology amounts to an acceptance of personal
guilt which depending on the facts, a doctor may regard as
inappropriate or excessive.”
D
Certainly, as I said earlier, the doctor still considers Mr Clark
to be the person he said he was.
Paragraph 19 is important:
“This ‘insight’ - the expectation that a doctor will be able to
stand back and accept that with hindsight, they should have
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behaved differently, and that it is expected that he or she will
take steps to prevent a reoccurrence - is an important factor in
a hearing.”
It then deals with cultural matters.
Madam, for all the reasons I have set out and due to the
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gravity of the original allegations and, we would submit, the
continuing need to protect the public, both the GMC and Mr
Clark ask the Panel to continue the existing conditions for one
year and to order that the Rule 31 review at the end of that to
assess the position at the end of that period.
G
Those are my, regrettably, over long submissions.
THE CHAIRMAN: Thank you. I am going to ask the Panel
whether they have any questions which they wish to ask, only
really because the Panel are entitled to ask any questions. If
they had any, this would be a convenient point at which to
ask. This is not an examination, as you are not a witness.
H
Does either member of the Panel have any questions? I should
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should probably ask the doctor’s Counsel the same question.
MS FOSTER: I am perfectly content with the fact my friend
has put his case in this way. I have observations that I would
wish to make but at this point I have nothing to say. Thank
you.
B
THE CHAIRMAN: Thank you very much. I know it is not
necessary to ask the Legal Assessor whether she has any
questions, but do you have any questions?
THE LEGAL ASSESSOR: No.
THE CHAIRMAN: In that case I think this may be a
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convenient point at which to adjourn.
MS FOSTER: Madam, I wonder, unusually for Counsel,
asking that we not adjourn rather than that we do. I do not
anticipate, subject to your questions, that I will detain you
very long in submission. I would respectfully ask that I could
make my submissions now. It might involve you in sitting
D
perhaps an extra five perhaps ten minutes past one o’clock but
if you would consider doing that, or at least taking me to that
time, then I can indicate to you what we will very shortly say
on behalf of Dr Southall.
THE CHAIRMAN: Do you have any witnesses to call?
E
MS FOSTER: We do not.
THE CHAIRMAN: Will you be calling Dr Southall?
MS FOSTER: I will not.
THE CHAIRMAN: It may be that the Panel may wish to hear
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from Dr Southall. Will
Dr Southall be content to?
MS FOSTER: I am sure he would, if they did. Yes.
THE CHAIRMAN: I am anxious that we do not go on and on
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and on. Apart from anything else, for reasons of the comfort
of the Panel and those listening, because there has been a long
period of concentration. Can I suggest that you make your
opening and it may be convenient for us to adjourn at that
point?
MS FOSTER: Yes.
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THE CHAIRMAN: Are you happy with that?
MS FOSTER: Yes.
THE CHAIRMAN: Is the Panel content with that? Thank
you. In that case, please?
B
MS FOSTER: Madam, as I indicated earlier today, Dr
Southall is pleased to tell the GMC that should you order it
under Rule 42(2)(b) he would freely accept a continuation of
his conditions of practice for a further period of 12 months.
There are two things that I wish to say of a general nature and
two more particular matters that I would draw to your
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attention.
The more general points are these: You may, having looked
compendiously at the material this morning, feel they are self-
evident. The first of them is this, that Dr Southall’s own
materials – and, in fact, he has brought with him the originals
of his notes – are, we would submit, careful and all evidence
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from his place of work together with the colleagues and
Medical Director with whom he must deal with on a daily or
weekly basis, demonstrate his meticulous obedience to the
letter and the spirit of the conditions. Materials coming from
him and, without question, each of the pieces of information
and evidence you have seen today speak to that.
E
Secondly, the reference material which was gathered by the
GMC shows without exception the continuing high esteem
and confidence with which Dr Southall is regarded today at
the highest levels within the profession. Madam, you will
have seen, when you read through the bundle – if not, on
occasion this morning – reference both at PCC level and in
court, to references of the very highest quality. That
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continuing esteem is an important factor, and it continues
today, after all the events which have happened.
I would be doing a disservice to Dr Southall if I did not say to
you that there are two or three sentences which I should read,
as it were, in public on his behalf. I understand that it is your
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page 69. If I could take you to the reference from Dr
Reynolds, please? I would just like to read, for your memory,
about four lines down from this doctor:
“To my knowledge, on every occasion over the last three
years where any child protection concerns have arisen in a
patient under his care, Dr Southall has always referred the
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child involved to another consultant paediatrician. I myself
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have, on a number of occasions, taken over the management
of such children from him.”
You will notice that the doctor says in the last paragraph,
almost gratuitously, mentioning the high standard of care in
both his outpatient and inpatient general paediatric work.
B
Turning to Dr Negrycz, at page 70, again a complete
description of total obedience to the letter of those quite
complex and, it was recognised, onerous restrictions.
Then if I can take you back in your bundle to Dr Parke, at
page 68, please? This is important because Dr Parke not only
says that:
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“Clearly, in acute paediatrics there is a great amount of child
protection referrals made. Professor Southall has always
passed these on to a colleague working on a specific child
protection rota. Throughout the last three years there have
been absolutely no concerns about his fitness to practise.”
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That is important to mention in the light of the last
submissions you have heard which really go to the matters
that this Committee, or a different constitution of this
Committee, considered all that time ago.
I bring to your attention once again, this comment in the next
paragraph:
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“In addition to this, he has been a wonderful, general acute
paediatrician for the children of North Staffordshire
participating fully in a paediatric acute on-call and the
consultant of the week service. He has been involved in
appraisal of junior staff, teaching and all departmental
activities. He is an extremely valued colleague and a
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fantastic, experienced clinical opinion.”
You have had reference made to Dr Chipping, which I shall
deal with in a moment.
The calibre and the content of the references I would
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respectfully say speak for themselves.
There are two more specific matters, which I will deal with
just before we rise, if I may? They are these: Madam, the
first of the specific matters, and the reason that I opened with
the submission as I did, Dr Southall recognises the imperative
of the incomplete GMC proceedings. As we heard, they
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started in November of last year. They have been adjourned
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through a whole year, until November of this year. No
resolution of them is expected until December. The obvious
comment is that he has carried on his professional life, with
that hanging over him, to the highest standards. That is plain
from the references that we have seen. He fairly recognises
that this Committee might well feel obliged to stay its hand in
lifting the conditions since, through no fault whatsoever of his
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own, he is right in the middle of a matter that ought to have
been decided many months ago.
The second particular matter is an important one and it is one
that may not be known generally outside the medical
community. Dr Southall has been, and he continues to be, the
subject of intense interest. That is my neutral terminology.
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This intense interest is at the hands of a small pressure group
composed mostly of parents about whom doctors have, in the
past, raised concerns, touching on child protection. As I said,
subject of intense interest is my neutral phrase. Witch hunt
and hate campaign are the phrases used elsewhere.
There have been complaints about many persons who show
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any interest or support in
Dr Southall. Even his Medical Director has been the subject
of a now dismissed complaint to the GMC.
What you may not know is that there is a new department at
the local hospital with a
full-time staff member designated to deal with the small
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group’s actions.
As I say, anyone with a connection to Dr Southall - many, I
should say - have received the attention of this group.
He longs to get back to full practice and his colleagues who
know him long for it also. He feels himself, very sadly, that at
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present the attention of this group could only damage child
protection and thus the public interest, were he practising fully
today.
These are not matters one would ever hope or expect to have
to articulate in a position like this on behalf of a man like Dr
G
Southall. Madam, I would respectfully say, both as a matter
of humanity and in the wider public interest, they are part of
your relevant context.
I will finish this part of my address just to say that their
chilling effect upon child protection paediatrics is notorious at
the highest level within the medical establishment.
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Madam, after the break, with your permission, I shall have a
few observations in the way that the case was put against me
but they will also be short.
THE CHAIRMAN: I think that concludes your opening
statement?
B
MS FOSTER: It does.
THE CHAIRMAN: In that case, I think this will be a
convenient time for us to adjourn.
We will return at quarter-to-two. I can see the Panel nodding.
We will re-convene at quarter-to-two, please.
C
(The Panel adjourned for lunch)
THE CHAIRMAN: Welcome back.
MS FOSTER: Thank you, madam. They do always say that
the longer you give Counsel to think about their submissions
the shorter they become. That short adjournment, I think, has
D
made my remaining submissions the more concise.
A number of things were said towards the end of Mr Tyson’s
address to you. He said that he had nine points. With respect
to him, I am not sure that they, in fact, break down into quite
so many sub-divisions. We say that there are a group of
matters which he addressed which are really not wholly
E
relevant today. They were very relevant at the time when he
made submissions before and, indeed, they mirror, pretty
much, submissions that he made to the tribunal at the time
when Professor Southall came before it in order for the PCC
to consider what sanction to apply.
Initially, he was asserting, without having called any facts,
F
that certain states of mind did or did not exist, as indeed he
asserted at that stage, on the basis of evidence. He said one or
two matters derived from the GMP and also from the
Sanctions Guidance. All of which were thoroughly relevant at
the time when the submissions were then made and, of course,
are part of the available and material context. He
G
characterized the original offences as very serious indeed. It
is not a phrase I do not think that appears certainly in the
PCC.
He also made mention of Dr Chipping’s comments about a
return to practice at present.
A return to practice, you heard from Dr Southall, through me,
H
is not something that he seeks for a variety of reasons. One of
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of those reasons was, indeed, one of the matters my friend put
forward, and that was the continuing question mark,
particularly, we would say, with reference to the GMC
proceedings which are not yet ended.
I think what I, effectively, would like to do is just to
summarise what, in a way, his submission could and, we say,
B
should be and with which we have no contest. It could not be
said, and we do not say, that this was not a serious case. Yes,
it was a serious case. It is a serious case. I say, in answer to
that, equally it cannot be gainsaid that Dr Chipping has
behaved impeccably since the sanctions were imposed upon
him.
C
THE CHAIRMAN: Sorry. Dr Chipping?
MS FOSTER: I meant to say Dr Southall. I am so sorry. We
next recognise the force of that part of the GMC’s submission
which draws your attention to the continuing proceedings
which involve Dr Southall. The others, we say, are peripheral
but they are not irrelevant to your consideration. We accept
D
that. This is not the forum to challenge the merits of the
previous decision. You have heard from us what we feel
about a continuation and the reasons for that continuation
today.
Given the substance of my address, those are the matters, I
would respectfully say, that you should be required to
E
consider.
Unless you wish me to address you on any particular matter,
that is all I have in mind to say to you on behalf of the doctor
today.
THE CHAIRMAN: Thank you. You did indicate that Dr
F
Southall would be willing to answer questions, if there were
any. If he is, I will first ask whether Mr Tyson has any
questions and then whether the Panel have any questions.
MS FOSTER: Certainly. It has not been indicated to me that
he particularly wishes to submit himself to gratuitous cross-
G
examination, I may say.
THE CHAIRMAN: Indeed.
MS FOSTER: Madam, if your Panel had questions, I think,
that, obviously, might be a matter on which he could assist
you. He is here today, I would say, with all good faith,
H
indicating his, if I may say so, very responsible attitude to the
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current position. Part of today is not to offer himself up once
more having already been cross-examined about the
particulars of this case and his response.
THE CHAIRMAN: I asked the question very carefully
because I am aware that you have not tendered him as a
witness.
B
MS FOSTER: I have not.
THE CHAIRMAN: Mr Tyson, are you content with that?
MR TYSON: I have no intention of cross-examining Dr
Southall.
C
THE CHAIRMAN: That is very helpful. I have not asked the
Panel members themselves whether they do, in fact, have any
questions or not. I just merely thought it may be a possibility.
As we are under the old Rules, and I think it is possible under
the new Rules as well, there is a provision for the Panel to ask
questions.
D
MS FOSTER: Obviously, Dr Southall is particularly
concerned to be of assistance. He would not wish to be
obstructive in any way. I think my submission would be to
you, knowing as I do, that he endorses and is fully aware of
what I have said and before I was to say it, I would be
surprised if there would be matters that he could assist you on
E
because I am conscious that I have been instructed to take
issue, if issue there was.
THE CHAIRMAN: That is very helpful. Does either member
of the Panel have any questions? No. I think my only
question that I would want to ask is about what work
Dr Southall is doing at the moment. I heard from Mr Tyson
F
that you are working one week out of four at Stafford but I
was not sure. Sorry not Stafford, Stoke. I was not sure from
what was in the letters that that was actually correct.
The Secretary is just reminding me that you should either be
sworn or you should reply through Counsel. I think this is my
G
only question. I think it would be convenient for you to
respond through your Counsel.
MS FOSTER: I am instructed that the establishment is the
University Hospital of North Staffordshire. Dr Southall works
the first and fourth Wednesdays, full day clinics. He has one
in five nights, weekends and weekends on-call for acute
H
general paediatrics and one week in five he is consultant of
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consultant of the week.
I perhaps should add, for completeness and accuracy, that
what was said about work out of the jurisdiction was correct.
This is in collaboration with the World Health Organisation
and the advanced life support group, called Emergency
Maternal and Child Healthcare.
B
Dr Southall has undertaken work in Pakistan and the Gambia
and has supervised work in Cameroon, Uganda, Albania and
Bosnia.
THE CHAIRMAN: Thank you very much. That is most
helpful. We do not have any further questions. We do not
have any witnesses. I think we have taken all the evidence
C
there is to be taken. Am I correct in thinking that there are no
further submissions or representations on either side? That
both your cases are complete?
MS FOSTER: Thank you, madam. That is correct, from my
point of view.
D
MR TYSON: That is also correct from my point of view.
THE CHAIRMAN: Thank you. The Panel is about to go into
camera to discuss their decision. I will, first of all, ask the
Legal Assessor whether she has any advice for us.
THE LEGAL ASSESSOR: Yes, I do. A lot of it has been
E
covered and I think my role as the Legal Assessor is just to
confirm whether it is appropriate or not. For those of you who
are not members of the legal profession, let me tell you that as
the Legal Assessor I am totally independent of this Panel and I
take no part whatsoever within the decision making itself. In
the event, when the Committee go into private, they ask me
something, then I will, if it is a matter of legal advice, actually
F
advise everybody in public what it was and the advice that I
gave. In the event that neither the Chair nor myself actually
say anything that will be because I was not actually asked for
any advice. I just want to make that clear.
G
Because this is one of the old Rules cases, then we are looking
at the General Medical Council Procedure Rules 1988,
Number 225.
One of the problems perhaps here is that, of course, there are
other proceedings of which the Committee are now aware,
that are going on but of course they are not privy to what is
H
part of those proceedings. Again, it is my advice to the Panel
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that as the matters are ongoing they should not exercise the
Committee’s mind as to any deliberations that might take
place in those.
This is a case where conditional registration has been imposed
for a period of three years. Pursuant to Rule 42(1) of the
Proceedings to which I have referred:
B
“The Committee shall first judge whether the practitioner has
failed to comply with any of the requirements imposed on him
as conditions of his registration.”
The Committee will recall from Mr Tyson’s opening that, in
fact, the GMC have no hesitation to confirm that this doctor
C
has not failed in any aspect in his compliance with those
conditions.
The Committee Pursuant to 42(2)(a) have to determine, three
choices, to revoke, vary or make no further directions in that
they can, in fact, continue with the conditions as they are
presently there.
D
I would drawn the Committee’s attention to 42(2)(b), and it
has been mentioned but I am doing it for the purposes of
reinforcement. This is the part that concerns me because there
is a mandatory requirement within that.
“If the Committee determine not to revoke the direction or
E
vary…”
Then
“…they shall proceed to impose a further period of
conditional registration and shall consider and decide the
nature of the conditions.”
F
That period cannot exceed 12 months.
I bring that to the Committee’s attention because of the
mandatory use of the word “shall” proceed to those
conditions.
G
I would reinforce the representation that was made by Mr
Tyson, that the Committee has to be proportionate, weighing
in the balance the interests of patients, the public and the
doctor’s own interests.
I have to say it always grieves me to say this but the
H
Committee does not have to take any notice of the legal
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advice that I give them. Case law, however, is against it and
indeed if they do they must give reasons in their
determination.
That is my advice for the time being.
THE CHAIRMAN: Do both Counsel agree with that advice?
B
Or, do you have any other observations on it?
MS FOSTER: I have no observations at all, thank you.
MR TYSON: I have no observations, madam.
THE CHAIRMAN: Do either of the Panel have any questions
C
to ask of the Legal Assessor at this point? In that case, the
Panel will now consider this matter in private. I will invite the
parties to withdraw and also the public and press.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR,
WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
D
STRANGERS HAVING BEEN READMITTED
DETERMINATION
THE CHAIRMAN: Dr Southall, the Professional Conduct
E
Committee on 6 August 2004 found you guilty of serious
professional misconduct and determined to impose one
condition on your registration for a period of three years. The
condition imposed was that you must not engage in any aspect
F
of child protection work either within the NHS (Category I) or
outside it (Category II). You did not lodge an appeal against
this decision and the condition took effect on 7 September
G
2004.
CHRE
(sic) appealed the decision of the PCC and on 14 April
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A
2005 the High Court handed down the judgment of Mr Justice
Collins in your case, which was to allow the appeal to a
limited extent. Mr Justice Collins ruled that the PCC’s
decision to impose conditions on your registration was not
B
unduly lenient. However, the PCC was unduly lenient in
failing to direct that a resumed hearing would take place at the
end of three years. In addition, the condition imposed was not
C
tightly enough drawn to prevent any involvement by you in
child protection work.
An Order, which was agreed between the parties, was
D
substituted for the PCC’s original decision. The principal
terms are that: the PCC’s condition is still in force from 7
September 2004 for a period of three years. In addition, you
E
must report any concerns on child protection issues (whether
within or outside the NHS and whether clinical, research
based or otherwise) to the most senior child protection doctor
working for your employer or the relevant local Primary Care
F
Trust as soon as possible, not take any further steps or have
any involvement whatsoever in relation to such concerns or
initiate any communications with, or seek to influence in any
G
way that child protection doctor/other person/body in relation
to such concerns; you must, every six months, provide to the
GMC details of any cases where you have reported your
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concerns; you must inform any employer of the existence and
terms of the conditions. It was directed that your case should
be resumed at the end of the three year period of conditional
registration.
B
At your PCC hearing on 6 August 2004, the Committee found
that in November 1999 Sally Clark was convicted of the
C
murder of two of her children, Christopher and Harry Clark.
On or about 27 April 2000 you watched the “Dispatches”
programme about the Sally Clark case and as a result,
contacted the Child Protection Unit of the Staffordshire Police
D
to voice concerns about how the abuse to Christopher and
Harry Clark had occurred.
E
On 2 June 2000 you met Detective Inspector Gardner of the
Cheshire Constabulary, the senior investigating officer into
the deaths of Christopher and Harry Clark, and told him that
you considered that Stephen Clark, Sally Clark’s husband, had
F
deliberately suffocated Christopher Clark prior to his eventual
death. You raised concerns about Stephen Clark’s access to,
and the safety of, the Clarks’ third child, Child A.
G
At that time, you were not connected with the case but made it
clear that you were acting in your capacity of a consultant
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A
paediatrician with considerable experience of life threatening
child abuse and that you were suspended from your duties by
your employers, the North Staffordshire Hospital NHS Trust.
You knew that it was an agreed term of the Trust’s enquiries
B
that you would not undertake any new outside child protection
work without the prior permission of the Acting Medical
Director of the Trust. You had not obtained this permission
C
prior to contacting the Child Protection Unit of the
Staffordshire Police or to meeting Detective Inspector
Gardner.
D
You relied on the contents of the television programme
“Dispatches” as the principal factual source for your concerns
and you presented as fact a theory about the case underpinned
E
by your own research. Your actions in doing so were
precipitate and irresponsible.
On 30 August 2000 you produced a report on the Clark family
F
at the request of Forshaws Solicitors, representing Child A.
At the time, you did not have any access to the case papers,
medical records, laboratory investigations, post-mortem
G
records, medical reports or x-rays. You had not interviewed
either Stephen or Sally Clark. Your report concluded that it
was extremely likely if not certain that Mr Clark had
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Clark had suffocated Christopher and you remained convinced
that Child A was unsafe in the hands of Mr Clark. Further,
your report implied that Mr Clark was responsible for the
deaths of Christopher and Harry. Your report declared that its
B
contents were true and may be used in a court of law whereas
it contained matters the truth of which you could not have
known or did not know. It contained no caveat to the effect
C
that its conclusions were based upon the very limited
information about the case known to you. You declined an
opportunity to place such a caveat in your report, stating that
it was likely beyond reasonable doubt that Mr Clark was
D
responsible for the deaths of Christopher and Harry. The PCC
found that your actions were individually and/or collectively
inappropriate, irresponsible, misleading and an abuse of your
E
professional position.
The PCC expressed extreme concern that you came to the
view that Stephen Clark was responsible for the deaths of
F
Christopher and Harry Clark without ever having met Mr or
Mrs Clark or viewing the medical evidence. The Committee
noted that you did not follow the guidance entitled “Expert
G
Witnesses in Children Act Cases” produced by Mr Justice
Wall.
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A
The Committee noted that your failure to adhere to the
principles contained within the GMC’s guidance “
Good
Medical Practice” resulted in substantial stress to Mr Clark
and his family at a time when they were most vulnerable and
B
could have resulted in Child A being taken back into care
unnecessarily. It was concerned that at no time during those
proceedings did you see fit to withdraw your allegations or to
C
offer any apology. Further, it considered that your conduct
amounted to a serious breach of the principles of
Good
Medical Practice and the standards of conduct which the
public are entitled to expect from registered medical
D
practitioners.
The Panel today has also noted the contents of the High Court
E
judgment handed down by Mr Justice Collins on 14 April
2005. In Justice Collins’s view, your refusal to change your
mind, despite circumstances which should tell a reasonable
person that his view is wrong is a serious weakness which can
F
lead to a risk to patients and others in the same way as a lack
of insight. He further stated that absence of remorse and
contrition is likely to be indicative of a lack of insight or of
G
maintenance of unreasonable views. In either event, it may
show that a risk of repetition exists. Justice Collins noted that
the PCC had stated that it would be inappropriate for you to
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continue with child protection work “for the foreseeable
future” and imposed the maximum period of conditions,
namely three years which, he stated, is hardly the foreseeable
future.
B
In his submissions before it today, Mr Tyson, on behalf of the
GMC, informed the Panel that you currently face further
C
misconduct allegations at the GMC which are unrelated to the
matters being considered by this Panel today. It noted the
advice of the Legal Assessor who stated that these matters are
not relevant to this Panel’s decision.
D
Mr Tyson informed the Panel that the Attorney General has
made a statement in the House of Lords about medical records
E
kept by you, known as “Special Cases Files”. The Attorney
General has announced that these files will be investigated
and the findings will be announced to Parliament.
F
Mr Tyson told the Panel that the South Wales Police are
currently investigating a matter in which you may be
G
involved, relating to a child and events which occurred in
1993.
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A
The Panel notes that none of these matters are material to its
decision today.
The Panel today has first had to consider whether you have
B
complied with the conditions imposed on your registration in
August 2004, and added to by the High Court in April 2005. It
notes that you have regularly updated the GMC with regard to
C
patients where child protection may be an issue and that you
have referred each of these cases on to your colleagues in
child protection work. It has noted the contents of the
references provided by you for the purposes of today’s
D
hearing from your colleagues at the University Hospital of
North Staffordshire, which verify that you have complied with
the conditions imposed on your registration. It further notes
E
the submissions of Mr Tyson that the GMC is satisfied that
you have not failed to comply with the conditions. The Panel
has determined that you have complied with all of the
conditions imposed on your registration.
F
In accordance with Rule 42(2)(a) and (b) the Panel went on to
consider whether to revoke the conditions, vary them, make
G
no further direction or whether to impose a further period of
conditional registration.
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A
It notes that the position of both Mr Tyson and Ms Foster,
your representative, is that the current conditions imposed on
your registration should remain in place for a further period of
12 months, to be reviewed before the expiry of those
B
conditions.
In determining what action to take with regard to the
C
conditions currently imposed on your registration, the Panel
has applied the principle of proportionality, weighing the
public interest with your own interests. The Panel has a duty
to protect the public interest. This includes the protection of
D
patients, the maintenance of public confidence in the medical
profession, and the promotion of proper standards of conduct
and behaviour as set out in the GMC’s document “
Good
E
Medical Practice”.
The Panel recognises that the purpose of
sanctions is not to be punitive, although they may have a
punitive effect.
F
Although the Panel did not hear evidence from you, or
submissions from Ms Foster on this point, it noted the
submission of Mr Tyson that there has been no substantial
G
change in your position in respect of the allegations you made
against Stephen Clark.
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A
The Panel has considered the calibre and content of the
references from your professional colleagues and notes that
you are held in very high esteem and that your work is
considered to be of the very highest quality. It further notes
B
that in the opinion of your colleagues at the University
Hospital of North Staffordshire, the conditions imposed on
your registration are practicable and workable.
C
The Panel notes that you currently work in paediatrics at the
University Hospital of North Staffordshire for approximately
one week per month and spend the remainder of your time in
D
paediatric work for charitable organisations and the WHO.
The Panel’s attention has been drawn to the GMC’s
E
“Indicative Sanctions Guidance” of April 2005. The Panel
appreciates that the guidance is intended for the Fitness to
Practise Panel operating under the General Medical Council
(Fitness to Practise) Rules 2004, however it considers its
F
contents are relevant in this case. This guidance states the
circumstances in which conditions may be appropriate.
G
The Panel also notes the contents of the “Indicative Sanctions
Guidance” in respect of review hearings. The guidance states
that it is important that no doctor should be allowed to resume
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A
unrestricted practice following a period of conditional
registration or suspension unless the Panel can be certain that
he or she is safe to do so. It further states that in all cases
where conditions have been imposed the Panel will need to be
B
reassured that the doctor is fit to resume practice either
unrestricted or with conditions or further conditions.
C
The Panel considers that this case is very serious. It notes the
views of the PCC and Justice Collins, that the conditions
currently imposed should remain in place for the foreseeable
future. It also notes that the conditions are workable and that
D
you have fully complied with them during the period in which
they have been imposed on your registration. It also notes the
submissions made on your behalf by Ms Foster that it would
E
be in your own interests for these conditions to remain in
place for a further 12 months.
In all the circumstances, the Panel has determined that the
F
period of conditional registration be extended for a period of
12 months. The conditions imposed are as follows:
G
1.
You must not engage in any aspect of Child Protection
work either within the NHS (Category I) or outside it
(Category II).
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2.
If, during the course of your medical practice (whether
within or outside the NHS and whether clinical or research-
based) or otherwise, you form any concerns on child
B
protection issues in relation to a particular child or children
(whether or not your patient and whether deriving from any
formal or informal approach to you concerning child
C
protection issues) you must:
a.
Report those concerns as soon as possible to the most
senior child protection doctor working for your employer (or
D
to the person responsible for child protection at the relevant
local Primary Care Trust) who is on-call at the relevant time
(the “child protection doctor”), and
E
b.
Not take any further steps or have any involvement
whatsoever in relation to any consideration, steps or actions in
any way connected to such concerns or initiate any
F
communications with, or seek to influence in any way
whatsoever, that child protection doctor or any other person or
body in relation to such concerns.
G
3.
For the remaining duration of these conditions, at
intervals of six months, you must provide to the GMC full
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details of any cases, whether involving an individual or
individuals, in respect of which you have reported concerns in
accordance with condition 2 above or, alternatively, confirm
that there have been no such cases during that interval.
B
4.
You must inform your current employer and any
C
subsequent employer (or relevant local Primary Care Trust) of
the existence and terms of conditions 1, 2 and 3 above.
The Panel will resume consideration of your case at a meeting
D
to be held before the end of the period of conditional
registration. It will then consider whether it should take
further action in relation to your registration. You will be
E
informed of the date of that meeting, which you will be
expected to attend.
Before that date you will be asked to furnish the Council with
F
names of professional colleagues and other persons of
standing to whom the Council may apply for information, as
to their knowledge of your conduct since the hearing of this
G
case. Please note, at the next resumed hearing your case will
be heard by a Fitness to Practise Panel applying the General
Medical Council (Fitness to Practise) Rules 2004.
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A
The effect of the foregoing direction is that, unless you
exercise your right of appeal, your registration will be subject
to these conditions for a period of 12 months, beginning 28
B
days from the date on which notice of this decision is deemed
to have been served upon you. The previous order of
conditional registration will remain in place until the new
C
direction takes effect.
That concludes this hearing today.
MR TYSON: Madam, before everyone disappears I heard
you to say before, the doctor’s appeal to Mr Justice Collins. I
D
may have mis-heard what you said.
THE CHAIRMAN: CHRE appealed the decision.
MR TYSON: Later on you used the word “your appeal”.
THE CHAIRMAN: I have read the determination, of which
E
you have a copy.
MS FOSTER: Madam, it is true that the phrase appears but it
appears right at the end of the decision, so far as I can find it,
correctly referring to Dr Southall’s right of appeal.
MR TYSON: Madam, it is correct in the written version. It is
F
in the second paragraph of the first page, when you said
“CHRE”. In fact, it was not CHRE, it was its predecessor
body.
MS FOSTER: CHRP I think it used to be.
G
MR TYSON: It was the Council for the Regulation of
Healthcare Professionals, so it is CRHP. Whenever the words
“CHRE” appears it should be “CRHP”.
THE CHAIRMAN: I think it only appears once.
MR TYSON: Secondly, the third line:
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“…handed down the judgment of Mr Justice Collins, in your
case, which was to allow the appeal to a limited extent.”
I wrote down, when you were speaking:
“which was to allow ‘your’ appeal to a limited extent.”
B
It is certainly correct in the written version. Apart from the
terminology of the appeal body, I think that it is all
typographically correct.
THE CHAIRMAN: My recollection is that I read the words
which are printed on the page. I do take the correction on
C
“CHRE”, which should be “CRHP”. Thank you very much.
- - - - - - -
D
E
F
G
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