GENERAL MEDICAL COUNCIL

FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)

Wednesday 28 November 2007

Regent’s Place, 350 Euston Road, London NW1 3JN

Chairman: Dr Jacqueline Mitton

Panel Members:

Mrs Leora LloydMr Alexander McFarlaneMr Arnold Simanowitz

Legal Assessor: Mr Robin Hay

CASE OF:

SOUTHALL, David Patrick

(DAY TWENTY-NINE)

MR RICHARD TYSON of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the Complainants.

MR KIERAN COONAN QC and MR JOHN JOLLIFFE of counsel, instructed by Messrs Hempsons, solicitors, appeared on behalf of Dr Southall, who was present.

(Transcript of the shorthand notes of T. A. Reed & Co.Tel No: 01992 465900)

I N D E X

Page No

SUBMISSION – MR TYSON 1

THE CHAIRMAN: Good afternoon. Can I just check, Mr Coonan, are you expecting your solicitor to join you?

MR COONAN: Madam, I am. I think she is engaged in photocopying. Madam, I am content if you wish to proceed.

THE CHAIRMAN: Thank you, Mr Coonan. Mr Tyson?

MR TYSON: Madam, I now have to address you under rule 28 of the old rules. Perhaps it might be useful if we have a look at what rule 28 of the old rules says.

THE CHAIRMAN: For the assistance of the Panel, this will be found in the session folder under tab C.

MR TYSON: Rule 28(1) says:

“Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.”

Madam, my task before you this afternoon is to address you on the circumstances leading to the facts, the extent to which those facts are indicative of serious professional misconduct, the character and the previous history of the practitioner and now, albeit not included in there, I also have to give you guidance on Indicative Sanctions at the request of the Panel.

Madam, as to the circumstances leading to the facts, you will be relieved to know I need not trouble you with those. Your determination shows that you have fully grasped the intricate factual matrix in this difficult and complex case and I need not tell you any more about the circumstances. As far as the question of serious professional misconduct is concerned, I do have a number of submissions to make to you.

Firstly, my global submission to you is that on your findings you should have little difficulty in establishing serious professional misconduct. You may think, and I would submit, that your findings in relation to M alone justify a finding of serious professional misconduct.

Madam, it is possible to do a small mathematical exercise and it is an important one here. In relation to these matters, you have found that Dr Southall acted inappropriately on six separate occasions. That is in relation to head of charge 6(a) in relation to M, 18(a) in relation to M, 9(b) in relation to the copying and sending of the Dinwiddie letter, 12(b) on two occasions, one in relation to H and the other in relation to D and 14(b) in relation to H. You have found that Dr Southall has acted in a way which has

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either caused or added to the distress of a patient or a parent. That is heads of charge 6(b) and 18(c). Three times you have found that Dr Southall has not acted in the best interests of a child. That is 12(a) in relation to D, 12(a) in relation to H and 14(a) in relation to H.

That in my submission is a severe finding in the case of a consultant paediatrician, to find that on three separate occasions he has not acted in the best interests of a child. On one occasion you have found that he has acted in breach of confidentiality. That is head of charge 9(b) in relation to the Dinwiddie letter. Most serious of all in my submission you have found that on four occasions the doctor has abused his professional position. That is head 6(c) in relation to M, 12(c) in relation to D, 12(c) in relation to H and 14(c) in relation to H.

This mathematical exercise in my submission shows the depth and width of Dr Southall’s failings over a wide range of misconduct, be it towards the parents of children or a wholly misplaced policy in relation to the finding of important clinical correspondence outwith the hospital’s main records.

If I can deal with serious professional misconduct in relation to each parent or group of parents involved in this case and serious professional misconduct in relation to M first. Your finding in relation to head 5(b), the accusation of drugging and then murdering child M by hanging in my submission is the most important and serious finding which you have made in these proceedings. One does not have to seek to understand how Mrs M felt about this accusation; you do not have to understand how she felt: she told you. She told you on Day 2/17G, when she said: “This is something I will have to live with forever. I am still quite angry about it.” That is nearly ten years later, she is still angry about it.

I would ask you to note in this context that until Dr Southall, to use the expression, came on board, no-one had ever suggested murder or even hinted at its possibility. It was not considered at all at the inquest, where the coroner had to grapple merely between a finding of accident or a finding of suicide. That is clear from the coroner’s judgment at C1/Y, page 223. Nor, following the death of M1, did the police feel that they had to do anything further about it or reinvestigate any aspect of it. We can see that from the Part 8 review, which was the multi agency review which was held where al parties were asked to look to see what lessons were to be learned. There were no lessons that the police they felt they had to learn in the sense of any kind of reinvestigation or the like. We see that at C1/M.

Madam, I accept your finding that Mrs M was not a patient, but for the purposes of Good Medical Practice, I would ask you, when considering the question of serious professional misconduct, to look at her as if she was a patient. The reason for that, I say, is this. You may well think that attending such an interview with a court appointed expert is not wholly dissimilar from attending an insurance medical, in that you are unlikely to have any relationship other than turning up at the insurance doctor at the behest of your insurance company to see that person and there is no continuing relationship at all. When guidance has been given in the Blue Book in relation to that, the attendee, if I can put it in that way, is described as “the patient”. We can see that in the Blue Book of December 1993 at paragraph 90. Paragraph 90 talks about disclosure in various circumstances and then says:

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“Special problems relating to confidentiality can arise where doctors have responsibilities not only to patients but also to third parties, as, for example, where a doctor assess a patient for an employer or an insurance company. In such circumstances, the doctor should ensure that at the outset patients understand the purpose of any consultation or examination, are aware of the doctor’s obligation to the employer or insurance company and consent to be seen by the doctor on those terms. Doctors should undertake assessments for insurance, or of an employee’s fitness to work, only where the patient has given written consent.”

Madam, I only use that analogy, in that in those circumstances the person who attends is described in the Blue Book as “the patient” and it is in those circumstances that I would ask you to look at Good Medical Practice. The edition which was in force at the time of the M matter in 1998 is Good Medical Practice for October 1995.

If I can first take you to the inside front cover of that – it is always difficult to read in view of the printing of white on blue – when it says:

“In particular as a doctor you must:

Treat every patient politely and considerately”.

That is slap on all fours with 17(a) which you found proved, and:

Respect patients’ dignity and privacy”.

That is 17(b).

Can I take you to paragraph 11 within that where it says: “Professional relationships with patients” and I would ask you to understand the word “patients” in the way I have sought to explain:

“Successful relationships between doctors and patients depend on trust. To establish and maintain that trust you must:

Listen to patients and respect their views Treat patients politely and considerately Respect patients’ privacy and dignity”.

Those establish that even in a position of a parent such as Mrs M, a doctor should not be treating her in the way that you have found and in the way that you have set out in you findings, namely that Dr Southall questioned Mrs M in an accusatorial and intimidating manner. For all those reasons, if no other, I would ask you to find serious professional misconduct in this case. It goes further, looking at serious professional misconduct in relation to the Dr Dinwiddie letter and Mrs M. Copying and sending this letter you held to be both inappropriate and in breach of confidentiality.

As to the latter, I took you in my closing and will not take you again, but merely ask you to note that the relevant blue book guidance is at C23. It is the 1989 blue book. The

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relevant paragraphs are 47, 48A, 79, 80, 81 and 82. The important paragraphs from the SPM point are 47, 48A and 79.

Madam, as part of the circumstances of this case you ought to know that Mrs H has reported her concerns about Dr Southall’s treatment of her son to the South Wales Police. The South Wales Police are investigating an allegation of assault made by Mr and Mrs H concerning their son, Child H. It is alleged that Dr Southall was a party to the commission of an offence in July 1991. His exact role in this matter is the subject of ongoing investigation.

Madam, in relation to the SC files and serious professional misconduct, I rely on your findings in relation to both (D) and (H) to 12(a), (b) and (c) and your findings in relation to (H) at 14(a), (b) and (c). In my submission, by your findings you have rejected Dr Southall’s policy of keeping original clinical correspondence outside the main hospital records. Clearly in our submission it was a seriously flawed policy and not, as you have found, in the best interests of the children that Dr Southall was notionally seeking to protect. The example you may think is rather stark in the (D) case, where Professor Warner’s findings of this child having a very severe allergic reaction and allergic problems were only contained in the SC file and not elsewhere. We would say that an added factor to serious professional misconduct in relation to these is that the flawed policy was again seemingly justified on the basis which again we say is flawed that the child would not return.

Madam, you have upheld, we would submit, Professor David’s views on the integrity of hospital medical records and that they should not be damaged in the way that Dr Southall did.

In the course of evidence you have heard that Dr Southall had some 4,449 special cases files. A number of wider issues arise from the fact of that number, you may think. Firstly, what information do they contain? Secondly, where are the files and the associated tapes and printouts? You heard in evidence that North Staffordshire asked Dr Southall to remove the Royal Brompton files and recordings from the premises at North Staffordshire. Another wider issue, you may think, is have the contents of any of these files ever been disclosed when Dr Southall acted as an expert witness in either criminal or childcare proceedings which related to a child upon which there were SC files?

Two consequences have arisen as a result of these wider concerns. First, you may recall that on the last day in November 2006, Mr Coonan read to you a statement on behalf of Dr Southall as a result of representations that I, at that time acting for the General Medical Council and not for the complainants, had made representations to him about. The best way I can explain this is by asking you to look at a bundle which will be the next C number.

THE CHAIRMAN: This is C25. (Document C25 marked and circulated) Madam, can I take you to page 23, first of all, which is an extract from the transcript of the relevant date. May I read to you from Day 16, page 48, between E and F:

“MR COONAN: Madam, with your leave can I move to what I think may be the last piece of business for you in this session. I do this in a formal way so that

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it is on the transcript. Mr Tyson knows what I am about to say, but it ought to be said formally.

I have received representations form Mr Tyson very recently, acting on behalf of the General Medical Council as opposed to the complainants, and, as a result of receiving those representations, I am making this statement on instructions from Dr Southall.

All the special cases files relating to patients at the Royal Brompton Hospital, wherever presently held, and the related tapes, and any associated printouts, together with a copy on disk of any Brompton clinical information held on the Academic Department computer at Stoke, to include the entire special cases and recordings databases, will all be transported to the medical records department at the Royal Brompton Hospital on the first available date convenient to both the Royal Brompton Hospital and to Dr Southall. This process will be managed through the offices of Dr Southall’s solicitors.

Secondly, Dr Southall will formally invite, through his solicitors, the medical records department at Stoke to assume day to day responsibility for the special cases files, together with any associated tapes and printouts, presently held in the Academic Department at North Staffordshire Hospital. Dr Southall will formally invite the medical records department to ensure that the special cases files, as described above, and the main hospital records, are managed in accordance with the hospital’s current medical record keeping policies and protocols. This invitation will involve a specific invitation to the hospital to physically marry up the two sets of files.

Thirdly, Dr Southall’s solicitors will inform the General Medical Council at the completion of the above steps.

Fourth, and finally, these matters that I have referred to should in no sense be taken as amounting to any admission of inappropriate conduct in the past. These proposals are put forward simply to do with any perceived concerns of any quarter in the light of the evidence taken as a whole.

That completes that statement. As I say, Mr Tyson was given advance notice of that.

MR TYSON: Madam, I had received advance notice of that. I have discussed it with both my instructing solicitors, and they in turn have discussed it with the General Medical Council, and this statement is acceptable to the General Medical Council.

THE CHAIRMAN: Thank you. That is, just to be clear, just a matter of information for the Panel.”

Dr Southall undertook to return the SC file material belonging to the Brompton to the Brompton and the SC file material belonging to the North Staffs to the North Staffs.

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Can I now take you to page 1 of C25. This is a letter to the General Medical Council dated 29 January 2007 from Messrs Hempsons relating to these matters and asking for an up-to-date position.

1. North Staffordshire Hospitals records

We enclose a copy of the letter we wrote to North Staffordshire Hospital NHS Trust on 5 December 2006 which we formally invited the Medical Records Department at Stoke to assume day to day responsibility for the Special Cases files.

In accordance with the statement provided to the Fitness to Practise Committee, [the statement I have just read out] we also formally invited the Medical Records Department to ensure that the Special Cases files and the main hospital records were managed in accordance with the hospital’s current medical record keeping policies and protocols. This invitation included a specific invitation to the hospital to physically marry up the two sets of files. As we explained to you over the telephone, the Trust may have logistical difficulties complying with these later requests. However they are working on devising a solution and you will be notified of this as soon as the issue has been resolved. These matters are, as you will appreciate, quite outside of Professor Southall’s control.

2. Royal Brompton Hospital Records

We enclose a copy of my letter to Mr Chapman at the Royal Brompton and Harefield NHS Trust dated 5 December 2006 in which we invited the hospital to take possession of the Special Case files relating to the Royal Brompton Hospital. We have since provided the Royal Brompton Hospital with a schedule of the Special Case files relating to Royal Brompton Hospital which are to be transferred. You will appreciate that there are approximately 2,500 of these.

We also enclose a copy of the Royal Brompton and Harefield NHS Trust letter to me of 11 January 2007 together with my reply. The present position is, therefore, that we are waiting for the Royal Brompton Hospital to advise when they are in a position to receive these records.”

Madam, enclosed with this letter was a copy of all the matters that were said to be enclosed.

Can I take you, please, to page 9. It is a further updating letter to the General Medical Council from Messrs Hempsons dated 25 October 2007:

“We write to provide you with an update regarding the statement made on Dr Southall’s behalf to the Fitness to Practise Panel on 2 December 2006.

North Staffordshire Hospital Records

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As we advised you on 29 January 2007, North Staffordshire Hospitals NHS Trust were formally invited, on 5 December 2006, to assume responsibility for the special case files in their possession. In the same letter the Trust was also invited to manage the records in accordance with the Hospital’s current medical record keeping policies and protocols.

Special case files relating to Royal Brompton Hospital patients.

On 29 January 2007, we advised you that we had written to the Royal Brompton Hospital on 5 December 2006 and invited the Hospital to take possession of the special case files relating to patients who had been seen at the Royal Brompton Hospital.

The special case files in Dr Southall’s possession relating to the Royal Brompton Hospital cases were sent to the Royal Brompton Hospital by courier on 16 March 2007. Three cases [there mentioned] were handed directly to the Attorney General for the purpose of his review.”

I will come back to that in a minute.

“On going through these files it became apparent that there were some files for patients who had started their treatment at the Royal Brompton Hospital and continued as patients of North Staffordshire Hospitals NHS Trust. These SC files were delivered into the custody of North Staffordshire Hospitals NHS Trust.

The tapes and associated printouts were delivered to the Royal Brompton Hospital on 4 October 2007.”

Madam, just pausing there, you will recall that there are the actual files themselves and then there are a number of reel-to-reel tapes, or whatever, and printouts. Those printouts and tapes were delivered to the Royal Brompton on 4 October 2007. I think I am entitled to make the comment there that that does not appear on the face of it to be the first available date from 2 December 2006.

“No CD of the Special Case and Recordings databases has been sent to the Royal Brompton Hospital because North Staffordshire Hospitals NHS Trust is having difficulty separating the data relating to the two hospitals. However, this matter is totally out of Dr Southall’s hands.”

Madam, of course I accept that.

“We therefore take the view that Dr Southall has complied with the statement that has been made on his behalf.”

Madam, I am afraid that is not the complete story, because a difficulty has arisen in relation to the tapes. In Mrs H’s case there were some 21 of these, and for a while, and possibly still, it is unclear where those tapes are. If I can just take you on a small correspondence story in relation to those tapes. In September 2007, Mrs H was told that the SC file and the related tapes were not at North Staffs, and we pick that up in letter

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11, which is a letter from North Staffs to Mrs H, and I need to take you merely to about six lines in the first big paragraph, where it says:

“The outcome of these specific searches is that no personal information relating to [Child H] (and/or family members) has been located. I have been reassured that the Trust did hold a Special Case file and tapes relating to [Child H] however these have now been returned to the Brompton Hospital.”

So that is what she has been told in September by North Staffs, they do not have them. Equally, she was told in September that the Royal Brompton did not have them either. We see this in the form of an email at page 13, from the Risk Manager at the Royal Brompton Hospital addressed to Mrs H, dated 28 September 2007:

“Dear Mrs [H]

Further to our telephone call earlier this morning I can confirm that the Royal Brompton Hospital does not have case files or tapes relating to your son …..

However we are expecting files and tapes to be delivered from North Staffs at the end of next week and I will contact you again when we are in a position to let you know if we have received them.”

That confirmation did come, as we can see on page 14, on 16 October. Again, the Risk Manager emailed Mrs H on 16 October at 9.43:

“Dear Mrs [H]

We have now received the shipment from North Staffs and can confirm that it does not contain any file or tapes relating to [Child H]. As far as we are aware we are not expecting any more files from North Staffs.”

So each of the hospitals is denying that they have either the files or the tapes. Field Fisher Waterhouse then entered the frame on 1 November, and we pick that up at page 16, writing to Hempsons, and I only need to take you to paragraph 1, where it says:

“We have seen a copy of your letters dated 29 January 2007 and 25 October 2007 which address your client’s compliance with his undertaking in relation to the Special Case files made at the end of the previous hearing. Please could you confirm whether in the scheduling and sorting of the files papers/tapes/print outs relating to any of the families in the ongoing case were identified – please could we have details.”

That was on the 1st. Then there was an email chaser on the 7th, which we see at page 18, merely asking for a response to the points in my letter of 1 November. There was a further chaser on the 15th, which we can see at 19. Then we have a response on page 20 on 15 November - madam, just pausing there, by now we are in the middle of this current hearing – from Hempsons to Field Fisher Waterhouse:

“I am not sure what information you require regarding SC files for your clients. As you know, there were SC files for [H], [A], [B] and [D]. We do not have any

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original files. Everything that Dr Southall had has now been sent to the RBH, North Staffs or the Attorney General. The computer remains at North Staffs in the possession of the hospital although as you will have seen, the technical department have so far been unable to separate the data”.

So effectively they are saying it has all been sent, and those instructing me replied later that day, on page 21, saying:

“On the SC files point there were as you know additional documents eg recordings/tapes in these cases. We would like to confirm that these were scheduled and passed over in accordance with the undertaking. At least one of our clients has been told by both hospitals that no tapes exist which cannot be correct.”

Then on 23 November, page 22, a few days ago, Hempsons reply to those instructing me, and that, for what it is worth, was a fax of 23 November at 13.03:

“We confirm [that] additional Special Case physiological tape recordings have been located.”

So they are now saying “We have found additional material”.

“We confirm [that] additional Special Case physiological tape recordings have been located. These tapes relate to both North Staffordshire University Hospital NHS Trust and Royal Brompton Hospital patients. The physiological tape recordings relating to Royal Brompton Hospital will be sent by courier today. Of these tapes, 21 relate to Child H.”

MR COONAN: Can you read the last paragraph.

MR TYSON: Certainly.

“As you are aware, no physiological tape recordings in relation to Child A have been located. All physiological tape recordings relating to Child B and D are in the possession of North Staffordshire University Hospital NHS Trust.”

So on 23 November further tapes were discovered. The difficulty that arose is that on the same date, but slightly earlier, if you turn to page 25, Mrs H received an email from North Staffordshire, which I am instructed she received at 12.00 hours, which is an hour before the previous one, on the 23rd, where it says that:

“Furthermore, I confirmed that previously the Trust had held a Special Case files and tapes relating to [Child H] but, however, this information had been returned to the Brompton Hospital. I must now inform you that I misinterpreted information provided to me and must now confirm to you that this hospital has not returned any information relating to you or your family to the Brompton Hospital.”

Two documents within an hour of each other, one saying they had been found and they are on their way to the Brompton, the other said “We never had them”, led to those

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instructing me to write, on the 27th, which is yesterday, to North Staffs, page 26, and picking up at the fourth paragraph:

“At 13.03 on Friday 23 November I received the attached fax from Hempsons solicitors indicating that physiological tape recordings including 21 tapes relating to Child H ….. would be sent by courier to the Royal Brompton that afternoon. I need to understand urgently how your letter and the one from Hempsons can be reconciled.”

Madam, the position to date, although my learned friend may be able to assist you further, is that on the one side it is asserted that Mrs H’s 21 tapes had been sent to the Brompton. There is an email – it is page 28 – timed this morning at 11.29, indicating that the Brompton were not able to say whether the 21 tapes had come. I understand very recent communications between the solicitors indicate they may or may not, but I cannot myself at this moment assist the Panel as to whether those 21 tapes are in fact at the Brompton or not. It may be a matter I may be able to clear up over any short break, but I see my learned friend is anxious to rise.

MR COONAN: For completeness, I wonder if you could add in the letter at page 27 to the run of correspondence, where the writer of the letter confesses to an error.

MR TYSON: Certainly. There is a letter at page 27 from North Staffs to Mrs H, saying:

“I informed you incorrectly that personal information had been returned to the Brompton hospital. This was my error and I apologise for this yet again.”

So at that time, she is still holding to her line that the North Staffordshire did not have these tapes. I am sure this matter is able to be cleared up easily, madam, but the point I seek to make is this. Dr Southall gave you an undertaking through a statement last year that, as it were, the SC files relating to Brompton and the associated printouts and the like would be sent to the Brompton; ditto the SC file material relating to North Staffs would be given back to North Staffs. It has taken a year for that to happen and it appears that it is only in the last few days it has happened in relation to Mrs H. I merely comment that is extremely sloppy compliance with an undertaking and formal statement given to you and the General Medical Council.

Madam, I said that there were two consequences of the fact that there were 449 SC files. The first one I have dealt with, relating to Dr Southall’s undertaking given to you last year. The second consequence is this. The Attorney General, then Lord Goldsmith, became involved and on 20 February 2007 he made a statement to the House of Lords relating to the SC files. I need to give you another C document, which I anticipate will be C26. (Same distributed)

Madam, pages 1 and 2 consist of a news release sent out by the Attorney General’s office dated 20 February 2007, which I ought to read to you. It is headed “Attorney General Announces Review of Cases Involving Professor David Southall” and reads:

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“The Attorney General has announced today that he will conduct a review of cases where Professor David Southall, a consultant paediatrician, was involved as a prosecution witness.”

I ask you to note that. It is entirely dealing with his role in criminal matters and within criminal matters as a prosecution expert.

“The General Medical Council is conducting a hearing into Professor Southall’s conduct, part of which relates to the holding of medical records. Professor Southall is alleged to have kept separate files on some patients, including files on cases which may subsequently have been subject of criminal prosecutions and where proper disclosure of medical records may not have been made.

In a written ministerial statement to the House of Lords today, the Attorney General, Lord Goldsmith, said: ‘It is said that Professor Southall kept so-called ‘special case’ files containing original medical records relating to his patients that were not also kept on the child’s proper hospital file. Concerns have been raised that in some of those cases criminal proceedings may have been taken but the existence of the files not revealed, resulting in their not being disclosed as part of the prosecution process. I share those concerns.

What is not clear at this stage is the nature and extent of the failure of disclosure, if such it be. I have therefore decided that I will conduct an assessment of the cases where Professor Southall was instructed as a prosecution witness to determine if any ‘special case’ files existed in any cases involving criminal proceedings. Once that assessment has been completed, I will decide what, if any, further review is required.

There are believed to be around 4,450 ‘special files’, and the review will go back 10 years. As a result of work previously done on Sudden Infant Death cases, cases where children died and Professor Southall appeared as a witness have already been identified.

The review will be conducted by the Attorney General’s office with assistance from the Crown Prosecution Service.”

Madam, can I take you, please, to page 3, which is a letter to those instructing me dated 19 July 2007. That reads:

“Dear Sirs

SOUTHALL ENQUIRY

I refer to our recent exchange of correspondence. I can tell you that the Attorney General’s review is ongoing. 4,234 files have been reviewed and a relatively small number remain outstanding. A number of files that fall within the scope of the review have been identified and are being investigated further.

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As this review was announced in Parliament, Parliamentary etiquette demands that any further announcements be made when Parliament returns, which is on 8 October. You will recollect that the original Parliamentary Statement made reference to the Attorney’s deciding what, if any, further review is required once the initial assessment has been completed. That second stage of the review has not yet been reached.”|

On 30 October, at page 4, those instructing me wrote to the Attorney General’s office asking effectively for an update and indicating in the third paragraph:

“We are about to resume the Fitness to Practise Panel hearing concerning Dr Southall, which began in November 2006 and was adjourned in December 2006. The case resumes on 7 November 2007. You may recall that the Attorney General’s review came about as a result of evidence given during that first part of the hearing.

It may be appropriate during the course of the remainder of the hearing, at an appropriate stage, for the Panel to be advised of the Attorney general’s review and be provided with an update.

If at all possible can you provide a short further letter to confirm the current position. Whilst respecting Parliamentary etiquette you will understand that the matters raised are potentially very pertinent to how the General Medical Council’s Panel deals with this case.”

Then on 1 November there was a reply at page 6 from the Attorney’s office, saying:

“Thank you for your letter of 30 October. I am pleased to advise you that the review of the files is complete. 4,344 files have been made available and considered by the review team. Unfortunately there has been some slippage in the timetable because a number of files were produced very late in the day by the University of North Staffordshire hospital, having been found with other records.

A report on the review has been submitted to the Attorney General who has indicated the course she considers it appropriate to take.”

Just pausing there, madam, there has been a change of Attorney General since the beginning of this correspondence and it is now Lady Scotland.

“A copy of the report has been supplied to Dr Southall’s representatives for them to consider the factual accuracy (only) of the report. His representatives have made a number of suggestions principally regarding biographical details which are being considered by the review team.

The report makes a number of recommendations for action by other Government departments. Recently we had a meeting with the concerned departments and have asked them to consider what they wish to do about the recommendations. We anticipate hearing from them in about a fortnight and will not be taking any further action until we hear from them.”

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That was the position on 1 November. Those instructing me emailed the Attorney on 26 November, which was Monday, to an official within that department. That is at page 7 and says:

“Thank you for your time today while I explained my involvement in this matter. As I explained we are expecting a decision tomorrow in the case of Dr Southall at the General Medical Council, this decision will relate to the facts of our case which include allegations about the keeping of SC files. Depending on exactly what matters are found proved we may then continue with the hearing and we will be able to explain to the Panel more information about the background and circumstances of the case. We intend to tell the Panel (in a public hearing) about the AG’s review into the SC files and for this we will rely upon the Press release from 20 February 2007, and Ms Walsh’s letter to me dated 19 July 2007 and 1 November 2007. This is likely to happen on Wednesday 28 November.

The purpose of my call was to ensure that you were aware of the progress of our case and the potential for publicity on this issue this week and next … As I explained whilst the inquiries are entirely separate we have been keen to ensure that where information can be exchanged it has been.

Also I am keen to know if you can give any information further to the letter of 1 November – for example:

1. The nature of the matters being discussed with other departments2. The departments who are being consulted3. Whether other departments have been able to respond …4. The likely timetable for any announcement … and what factors might

impact on this.

Any further assistance you can give would be appreciated …

I should re-iterate that, whilst I often act for the GMC, in this particular case I act for a number of families who are complainants.”

And there is a suggestion that the AG should contact the GMC case worker if necessary. Then at 12.29 today, a few hours ago, at page 8, the Attorney’s officer emailed, saying:

“At this stage there is little that we would want to add to the work of the GMC as our priority is to ensure that Parliament is made aware of the review findings first. Without wishing to be bound on timescales, I would suggest that this will happen in a matter of weeks rather than months.”

Madam, you may ask why I am mentioning all this. The answer is this. All I can seek to say at this stage is that it is an indication of the potential seriousness of the professional misconduct of Dr Southall in maintaining this parallel filing system that the Attorney General called for a review in the first place. Madam, no-one knows what the results of the review will be. All I do say is that you can take into account when considering serious professional misconduct the mere fact that the Attorney felt that the matters raised in the evidence in this case were sufficiently serious for him to make a formal statement to the House of Lords about it and to commission a review.

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Madam, that is all I intend to say about serious professional misconduct. In my overall submission, there is overwhelming evidence of serious professional misconduct in this case.

My next task under rule 28 is to address you on the character and previous history of the practitioner. It is right that you are now made aware of the fact that Dr Southall was found guilty of serious professional misconduct in June 2004 and that conditions on his practice were subsequently imposed. It is equally right that you should know that the events in that case took place after the events in the case that you are dealing with. The events in the case that I am telling you about or am going to tell you about took place in 2000, whereas the latest allegations I think in time in the matters that you are dealing occurred in 1998.

Madam, I now ask you to look at another bundle, which I anticipate will be C27. (Same distributed) You will see at page 1, madam, that the professional conduct hearing took place in some weeks in June and a few days of August 2004 and the representation will perhaps not surprise you. I need to read the charges for you to understand what this case was about:

“1. In November 1999 Sally Clark was convicted of the murder of two of her children, Christopher and Harry Clark; Admitted and Found Proved

2. On about 27 April 2000 you watched the “Dispatches” programme about the Sally Clark case that was broadcast on Channel 4 television that night; Admitted and Found Proved

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 had in fact occurred; Admitted and Found Proved

4. 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

a. Stephen Clark, Sally Clark’s husband, had deliberately suffocated his son Christopher Clark at a hotel prior to his eventual death, Admitted and Found Proved

b. Stephen Clark was thus implicated in the deaths of both Christopher and Harry Clark, Admitted and Found Proved

c. there was thus concern over Stephen Clark’s access to, and the safety of, the Clarks’ third child, Child A; Admitted and Found Proved

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5. At the time of meeting Detective Inspector Gardner, you

a. were not connected with the case, Admitted and Found Proved

b. made it clear that you were acting in your capacity as a consultant paediatrician with considerable experience of life threatening child abuse, Admitted and Found Proved

c. were suspended from your duties by your employers, the North Staffordshire Hospital NHS Trust (“the Trust”), Admitted and Found Proved

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, Admitted and Found Proved

e. had not sought permission of the Acting Medical Director prior to contacting the Child Protection Unit of the Staffordshire Police and/or meeting with Detective Inspector Gardner, Admitted and Found Proved

f. relied on the contents of the “Dispatches” television programme as the principal factual source for your concerns, Admitted and Found Proved

g. had a theory about the case, as set out in Head 4 above, that you sought to present as scientific fact as underpinned by your own research; Admitted and Found Proved

6. Your actions as described in Heads 3 and/or 4 and/or 5 were

a precipitate Found Proved in relation to Heads 3 and 5 Found Not Proved in relation to Head 4

b irresponsible Found Proved in relation to Head 5 Found Not Proved in relation to Heads 3 and 4

c an abuse of your professional position; Found Not Proved in relation to Heads 3, 4 and 5

7. On 30 August 2000 you produced a report on the Clark family at the request of Forshaws, Solicitors Admitted and Found Proved

a At the time that you produced your report you

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i. did not have any access to the case papers, including any medical records, laboratory investigations, post-mortem records, medical reports or x-rays, Admitted and Found Proved

ii. had not interviewed either Stephen or Sally Clark, Admitted and Found Proved

b Your report concluded that

i. it was extremely likely if not certain that Mr Clark had suffocated Christopher in the hotel room, Admitted and Found Proved

ii. you remained convinced the third child of the Clark family, Child A, was unsafe in the hands of Mr Clark, Admitted and Found Proved

c Your report implied that Mr Clark was responsible for the deaths of his two eldest children Christopher and Harry, Admitted and Found Proved

d Your report was thus based on a theory that you had about the case that you sought to present as scientific fact as underpinned by your own research, Found Proved

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, Admitted and Found Proved.

g. When given the opportunity to place such a caveat in your report you declined, by faxed email 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. Admitted and Found Proved.

8. Your actions as described in Head 7 above were individually and/or collectively:

9.a. Inappropriate, Found Proved. b. Irresponsible, Found Proved.c. Misleading and, Found Proved. d. An abuse of your professional position. Found Proved.

And that in relation to the facts alleged you have been guilty of serious professional conduct. Guilty of Serious Professional Misconduct”.

Madam, there are aspects of the determination that I need to read to you.

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“In November 1999 Sally Clark was convicted of the murder of her two children, Christopher and Harry Clark. On or about 27 April 2000 you watched the “Dispatches” programme about the Sally Clark case that was broadcast on Channel 4 television that night. 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 concerns about how the abuse to Christopher and Harry Clark had in fact occurred. Following this 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 Stephen Clark, Sally Clark’s husband, had deliberately suffocated his son Christopher Clark at a hotel prior to his eventual death. Stephen Clark was thus implicated in the deaths of both Christopher and Harry Clark. Based on this opinion, you raised concern about Stephen Clark’s access to, and the safety of, the Clarks’ third child, Child A.

At the time of meeting Detective Inspector Gardner, you were not connected with the case. You made it clear that you were acting in your capacity as a consultant 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 (“the Trust”). You knew that it was an agreed term of the Trust’s enquiries that led to your suspension that you would not undertake any new outside child protection work without the prior permission of the Acting Medical Director of the Trust. Despite this, you had not sought permissions of the Acting Medical Director prior to contacting the child Protection Unit of the Staffordshire Police and meeting with Detective Inspector Gardner. You relied on the contents of the “Dispatches” television programme as the principal factual source for your concerns. You had a theory about the case that your presented as fact as underpinned by your own research. The Committee found your actions in contacting the child protection unit of the Staffordshire Police to be precipitate and by not seeking the permission of the Acting Medical Director of the Trust before meeting DI Gardner to be precipitate and irresponsible.

On 30 August 2000 you produced a report on the Clark family at the request of Forshaws Solicitors. At the time that you produced your report you did not have any access to case papers, including any medical records, laboratory investigations, post-mortem 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 suffocated Christopher in the hotel room. You remained convinced that the third child of the Clark family, Child A, was unsafe in the hands of Mr Clark. Your report implied that Mr Clark was responsible for the deaths of his two eldest children, Christopher and Harry. This was based on a theory that you had about the case that you presented as fact, as underpinned by your own research. 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. Your report contained no caveat to the effect that its conclusions were based upon the very limited information about the case known to you.

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When given the opportunity to place such a caveat in your report you declined, by faxed email dated 11 September 2000, stating that even without all the evidence being made available, it was likely beyond reasonable doubt that Mr Clark was responsible for the deaths of his two other children. The Committee have found your actions as described above to be individually and collectively inappropriate, irresponsible, misleading and abuse of your professional position.

The Committee were extremely concerned about the facts of this case. The Committee have heard that a formal complaint was made against you in January 1999. The Trust placed a limitation on your work preventing you from undertaking any category 2 work (work that is commissioned by an external agency) pending the outcome of their investigations. You agreed to the Trust’s request. Due to the seriousness of their concerns in November 1999, the Trust suspended you for the duration of their inquiry and you were therefore prevented from undertaking any child protection work.

The Committee have heard that you had been following the Clark case with interest as a proportion of your clinical and research work involved the sudden and unexpected deaths of infants and on 27 April 2000 you watched the Channel 4 Dispatches programme which featured an interview with Stephen Clark. As a result of viewing the programme, you formed the definite view that Mr Clark had murdered both Christopher and Harry and that accordingly not only had the wrong person been convicted but that the life of the remaining child (Child A) was in danger by virtue of the fact that he was being cared for by Mr Clark”.

Madam, you may find in that passage strong echoes of Mrs M’s case here where an early view is formed and pursued.

Reading on,

“You were so convinced of your opinion that you contacted the local child protection team, and subsequently met with Detective Inspector Gardner, the police officer in charge of the case. The matter was reported to Social Services and subsequently there was a meeting between yourself, Social Services and the guardian of Child A. This in turn led to Social Services convening a Child Protection Planning meeting. The result of this meeting was that you were asked to produce a report and the matter was investigated further. You did produce such a report dated 30 August 2000, in which you concluded that Stephen Clark was responsible for the deaths of both Christopher and Harry and that the Clark’s third child was unsafe in his care.

The Committee are extremely concerned that you came to this view without ever meeting or interviewing Mr or Mrs Clark, without seeing any of the medical reports, post-mortem reports and without knowledge of the discussions between the experts or witnesses involved with the Sally Clark case. You did not put yourself in a position to give a meaningful explanation”.

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Pausing there for a moment, you will recall that the social worker in Mrs M’s case had recorded in her case notes that on the first discussion about the M case, Dr Southall was of the view that this was a parentally induced illness just on the basis of a telephone call with the social worker. Again we say there are echoes with the Clark case there.

Reading on,

“Your view was a theory which was however not presented as a theory but as a near certainty. Your hypothesis, based on your research, was that the nose bleed that Christopher suffered in the hotel room whilst alone with Mr Clark was as a result of an assault. Your view is that a bilateral nose bleed in an infant in the absence an identifiable disease or accident was virtually always the consequence of life threatening child abuse, usually an attempted smothering. We heard from Professor David, the GMC expert witness, that in order to come to such a firm view, one must explore all the potential causal explanations for the nose bleed and detail this process in the findings. In your evidence you stated you did not do this, as it was known to all the other recipients of the report that you did not have access to any other documentation. However, you have accepted that it would have been good practice to have detailed the diagnostic process in your report”.

Then the matter deals with guidance about expert witnesses which I need not trouble you with. As a matter which has come up in this case and it right to point out in view of your findings on the top of page 7 in the second paragraph it says,

“The Committee accepted that as a consultant paediatrician you had a duty to report any concerns that you may have regarding child safety with other professionals, but as you were prevented from undertaking any new child protection work due to the suspension imposed on you, you should have contacted Dr Chipping Medical Director, as the terms of your suspension required prior to taking any action.

The Committee also accept that the nature of child protection is such that sometimes concerns are raised which prove to be unfounded. However, despite this, there is a duty of care to raise such concerns in order to ensure the protection of children.

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 from the standards expected from a registered medical practitioner”.

It then goes on to deal with Good Medical Practice at a time after then.

I then take you to the penultimate paragraph:

“... The Committee do not believe that you did take reasonable steps before you signed the report on the Clark case. Your failure to adhere to these principles resulted in substantial stress to Mr Clark and his family at a time when they were most vulnerable and could have resulted in Child A being taken back into care

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unnecessarily and Mr Clark’s prosecution as a result of your false allegation the Committee are concerned that at no time during these proceedings have you seen fit to withdraw these allegations or to offer any apology”.

Again, you may think that there are echoes in the M case there.

“Taking all these matters into account, the Committee find you guilty of serious professional misconduct. In considering whether to take action in relation to your registration, the Committee have considered the issue of proportionality and have balanced the interests of the public against your own. The Committee have given careful consideration to the submissions made on your behalf and on behalf of the GMC and Mr Clark. It has also considered carefully the GMC’s Indicative Sanctions Guidance document. The Committee have been extremely impressed by the vast number of and quality of testimonials that have been put before them. It is clear from the testimonials that you are held in the highest esteem by your professional colleagues both in the United Kingdom and internationally. They all testify to your outstanding clinical skills and unparalleled commitment to the welfare of children all over the world. In particular we have noted the comments of Professor Sir Alan Craft, President of the Royal College of Paediatrics and Child Health (RCPCH) who states that there has been no doubt that you have been an academic leader and that you have undertaken extremely important ground breaking research which ‘has greatly influenced the way that babies and children have been managed all over the world’.

The testimonials dealt with not only your research work but also your work in paediatrics and child protection. There are many references to your unstinting involvement in the care of seriously ill children both within your own Trust and wider a field. Your colleagues have testified of your willingness to help them when faced with difficult cases no matter the personal cost to yourself. The Committee have also heard and have been impressed by the fact that you set up Child Advocacy International, a charitable organisation which helps and promotes the welfare of sick children in less privileged parts of the world. The Committee notes that prior to this hearing you have more than 30 years of unblemished medical practice.

The Committee have taken into account the evidence of Dr Chipping, Medical Director, who appeared before the Committee to give an oral testimony on your behalf. Dr Chipping stated that since your return to work in October 2001, you have only worked in the area of general paediatrics and that you no longer involve yourself in paediatric intensive care or indeed in child protection work.

The Committee nevertheless concluded that the findings against you reflect a serious breach of the principle of Good Medical Practice and the standards of conduct, which the public are entitled to expect from registered medical practitioners and the Committee therefore feel obliged to take action in the public action. In reaching this conclusion, the Committee have borne in mind the Privy Council judgment in the case of Dr Gupta (Privy Council Appeal No 44 of 2001) which states that:

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‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price’.

In considering what action to take against your registration, the Committee recognise that taking no action and concluding this case with a reprimand would be wholly inappropriate. 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. Therefore, the Committee have decided to impose the following condition on your registration for a period of three years:-

1. You must not engage in any aspect of Child Protection work either within the NHS (Category I)or outside it (Category II)”.

Madam, that decision by the Panel to deal with the matter by way of conditions was appealed against by the body that was then the Council for the Regulations of Health Care Professionals who submitted that the decision of the Panel was unduly lenient and that erasure was the only appropriate remedy. Mr Justice Collins’ judgment in that case is before you from pages 10 to pages 31. You will be relieved to hear that I am not going to take you to many passages of that, but it is right that you should know important aspects of his judgment in this case first of all in relation to how one treats testimonials in these kind of cases. We pick it up at paragraph 12 on page 14. It reads,

“As will become apparent, the PCC were very much influenced by testimonials which were put before them on behalf of Professor Southall.”

Later in paragraph 12 Mr Justice Collins reads from the well-known passage in Bolton. If I can pick it up on page 15, four lines down the second paragraph where he says,

“It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matter are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence of the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important part than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price”.

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Paragraph 13 reads,

“Miss Carss-Frisk, when I drew her attention to this passage in Bolton suggested that testimonials should not be accorded substantial weight and certainly should not produce a lower sanction than that which would otherwise have been appropriate. Testimonials in the case of a doctor can go much further than in the case of a solicitor since they can show that he has been and is, apart from the misconduct in issue, a thoroughly good doctor. It is clearly in the public interest that doctors who are competent and for whose skills many patients and colleagues have nothing but praise should not be precluded from practice altogether if that can be achieved with no danger to the public and with no damage to the reputation of the profession.”

Then paragraph 14,

“It follows that in my view testimonials can in the case of doctors be accorded greater weight than in the case of solicitors. The requirement of absolute honesty so there can be absolute trust in a solicitor is obviously of paramount importance. That he may be a good solicitor is obviously something to be taken into account, but the public interest in him being able to continue in practice is not so important. Thus testimonials which establish that a doctor is, in the view of eminent colleagues and of nursing staff who have worked with him, one who is not only competent but whose loss to the profession and to his potential patients would be serious indeed can, in my opinion, be accorded substantial weight.”

That is what Mr Justice Collins said about testimonials and the weight to be given to them.

May I please take you to paragraphs 29 and 30 which are on page 26, dealing with the issue of insight. One of the submissions made in the Clark case was that Dr Southall lacked insight into the consequences of his actions. Dr Chipping was also asked about insight. It is page 26, paragraph 29:

“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 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.”

Mr Justice Collins picks it up:

“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

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wrong is a serious weakness which can lead to a risk to patients and others in the same way as a lack of insight.”

Moving to paragraph 30:

“Absence of remorse and contrition is likely to be indicative of a lack of insight or of maintenance of unreasonable views. In either event, it may show that a risk of repetition exists.”

I rely on that passage.

“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 really does exist. Provided that they have properly considered all the relevant circumstances and have had regard to the correct principles and have reached a conclusion which is itself reasonable this court will not interfere. Furthermore, the guidance is just that and it does not automatically follow that erasure must follow if any of the bullet points set out apply. The overarching principles must be taken into account and they include a recognition that the public interest may, despite a finding that he has been guilty of serious professional misconduct, indicate that a doctor should be able to return to safe work. And the conduct must, if erasure is to be justified, be fundamentally incompatible with being a doctor. In that respect, I agree with what is said in the guidance.”

Madam, moving on to paragraph 35:

“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 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 the material matters and it cannot be said that they misdirected themselves. They were, as I have already said, entitled to consider that there was on real risk that the condition excluding him from child protection work would be broken. The flaws disclosed 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.”

I will be making subsequent submissions on that.

“Thus erasure was not in my view an inevitable result of the misconduct which the PCC found proved. A reasonable observer would appreciate that the sanction was for him severe indeed and that it would produce a sufficient 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

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PCC’s decision that it could be achieved seems to me to be entirely reasonable in all the circumstances.

It was, however, essential that conditions imposed should be tightly drawn so as to prevent any involvement in child 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 3 years, which is hardly the foreseeable future.”

Taking you to paragraph 37:

“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 decision to be made at the end of the three year period whether any condition should be maintained. I also think the conditions could be drawn more tightly so that it is made clear that all that Professor Southall can do if 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.

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 intimation in accordance with rule 31(5).”

As a result of that appeal, revised conditions were imposed upon Professor Southall and we can see those at page 32. It is a letter from the General Medical Council dated 23 June 2005 to Professor Southall:

“I would like to formally confirm the conditions contained in the High Court judgment of 14 April 2005 and set out our expectations over the three year period for which these conditions will apply.

On 14 April 2005, Mr Justice Collins ordered that the following conditions be substituted for the conditions placed on your registration by the Professional Conduct Committee on 6 August 2004.

You are therefore subject to the following conditions which will be effective for the remaining duration of the PCC decision until 6 September 2007:

1. You must not engage in any aspect of child protection work either within the NHS (category I) or outside it, (category II) for a period of three years starting from 7 September 2004.

2. If, during the course of your medical practice (whether within or outside the NHS and whether clinical or research based or otherwise)

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you form any concerns on child 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 protection issues) you must:

(a) Report those concerns as soon as possible to the most senior child protection doctor working for your employer (or 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,

(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 whatsoever that child protection doctor or any other person or body in relation to such concerns.

This is clearly drafted by a lawyer rather than a human being.

3. For the remaining duration of these conditions at intervals of six months starting from 14 April 2004 you must provide to the GMC dull details of any cases (whether involving an individual or individuals) in respect of which you have reported concerns in accordance with 2 above, or alternatively, confirm that there have been no such cases during that interval.

4. You must inform your current employer and any subsequent employer (or relevant local primary care trust) of the existence and terms of 1, 2 and 3 above.

Mr Justice Collins ordered that the PCC resume consideration of your case. The Fitness to Practise Panel (acting in accordance with PCC rules) will hold a review hearing shortly before the end of the three-year period for which these conditions apply. This is currently scheduled to be held on 23 July 2007.”

THE CHAIRMAN: Mr Tyson, I think the Panel would quite like a break and you, as you are using your voice a lot, perhaps you would like one too, unless this is entirely inappropriate and you need a few more moments.

MR TYSON: I would, yes. It is fine now, madam.

THE CHAIRMAN: We will resume at 4 o’clock.

(The Panel adjourned for a short time)

MR TYSON: Madam, we are in C27 and I had just taken you to the letter of 23 June 2005 from the General Medical Council to Dr Southall setting out what his conditions were as a result of Mr Justice Collins’ judgment. On page 33 you will have noted in the

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middle of the paragraph that there was going to be a review of those conditions on 23 July 2007.

Madam, there was such a review of the Clark conditions, if I can put it that way, on 23 July 2007 and that is at your page 35. I need to read the first two paragraphs to show where we are. This is the determination given by a Fitness to Practise Panel on 23 July 2007.

“The Professional Conduct 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 engaged in any aspect 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 2004.

CRHP appealed the decision of the PCC and on 14 April 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 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 tightly enough drawn to prevent any involvement by you in child protection work. An order, which was agreed between the parties, was 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 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/the relevant local primary care trust as soon as possible, not to take any further steps or to have any involvement whatsoever in relation to such concerns or initiate any communications with, or seek to influence in any 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 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.”

Can I take you to page 37, the second paragraph:

“In his submissions before it today, Mr Tyson, on behalf of the GMC, informed the Panel that you currently face further 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.

Mr Tyson informed the Panel that the Attorney General has made a statement in the House of Lords about medical records 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.

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Mr Tyson told the Panel that the South Wales Police are currently investigating a matter in which you may be involved relating to a child and events which occurred in 1993.

The Panel notes that none of these matters are material to its decision today.”

Then it sets out what the Panel’s tasks were on a review. Unless my learned friend wants me to take you to those matters, I made the submission that he had not failed to comply with his conditions; i.e. he had complied with his conditions. The penultimate paragraph:

“The Panel notes that the position of both Mr Tyson and Ms Foster [leading counsel then representing Dr Southall), 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 conditions.”

That was the position of both counsel. Effectively that is what the Panel decided to do to continue those conditions for a further 12 months. Picking it up at page 38, half-way down:

“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 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 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 period of conditional registration be extended for a period of twelve months.”

Madam, on a technical note, you will note that in July of this year the Review Panel renewed the conditions for a further period of 12 months. That is the maximum that they were allowed to do under the old rules and for the benefit of your Legal Assessor that was old rule 42(2)(b).

On the next occasion when the Clark conditions are reviewed, which will be in June/July 2008, by virtue of the transitional provisions that panel can, if it wants, extend the conditions by a further three years because by that time by virtue of the transitional provisions the new rules will apply. The new rules, by virtue of new rule 22(g), permits on review conditions to be continued for three years.

Madam, I say this so that were you to be considering conditional registration in this case you should not in any way be constrained in making the length of your conditions by the length of the existing conditions in the Clark case. The two can eventually marry up, if that is what you want, because in June 2008, when considering the Clark conditions, that panel will have the opportunity of considering the length of your conditions and of marrying up the length of the Clark conditions with yours, and so ultimately were you to impose conditions at this stage, do not worry is my submission about what is going on

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with the Clark case and will they ever marry up because there is a perfectly good legal route where they can eventually marry up. That is all I want to say about that.

THE LEGAL ASSESSOR: Does that mean there can be two sets of conditions running in parallel, as it were?

MR TYSON: Yes, it does, provided they do not conflict.

Madam, can I finally turn to the issue of Indicative Sanctions, please, and say a number of matters before I go to them in detail.

First of all, this is an old rules case, so a number of propositions in the Indicative Sanctions Guidance are not applicable to you. Secondly, pursuant to paragraph 19 of the Indicative Sanctions Guidance, which I will come to, the decision as to the appropriate sanction to impose in this case is a matter for the Panel exercising your own independent judgment. What I am about to say in the course of my submissions on behalf of the complainants are just that – they are just submissions to assist you in making your decision and my submissions are made under rule 28, but whatever my submissions are, the decision is yours and yours alone. Thirdly, and on a more personal note, may I say that as an old style prosecutor I do find it difficult making submissions on sentence in matters. It does not happen in criminal courts and I personally find it difficult but I loyally have to obey the rulings that I have to take you to them.

I am going to take you to a number of familiar paragraphs as I have to and thereafter make my submissions. Could I ask you to look at the Indicative Sanctions Guidance, the April 2005 guidance that is material.

THE CHAIRMAN: It is the second document in tab D.

MR TYSON: May I take you firstly to paragraph 13 on page S1-3, dealing with the public interest. Paragraph 13 states:

“The question of whether the Fitness to Practise Panels should consider only ‘the protection of members of the public’, or whether they could also consider the wider ‘public interest’ in determining sanctions arose in the 1998 Bristol case. Counsel for the GMC drew attention to a number of relevant Judgments by the Judicial Committee of the Privy Council which illustrate, that in addition to the protection of the public, the public interest includes, amongst other things:

a. Protection of patients

b. Maintenance of public confidence in the profession

c. Declaring and upholding proper standards of conduct and behaviour.”

We would submit that all those three are relevant in your considerations in this case. Moving to paragraph 16:

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“In deciding what sanctions to impose the Panel should apply the principle of proportionality, weighing the interests of the public (see above) with those of the practitioner, which could include returning immediately, or after a period of retraining to unrestricted practice. In addition the Panel will need to consider any mitigation in relation to the seriousness of the behaviour in question.”

Paragraph 17 on sanctions and the purpose of sanctions:

“The purpose of the sanctions is not to be punitive but to protect patients and the public interest, although they may have a punitive effect.”

Paragraph 19:

“The decision as to the appropriate sanction to impose is, of course, a matter for the panel. [That is what I have made preliminary remarks about.] But, the panel must:

a. Be sure that the action it proposes to take is sufficient to protect patients and the public interest (see paragraph 46 of Annex A, page A4).

b. Act within the framework set out by the GMC and reflected in this document.

d. Give reasons for its decisions on the appropriate sanction. Where the panel decides to impose conditions or suspension it must specify the period the conditions or suspension are to apply and explain why it considered that particular period appropriate. Where a panel impose a lesser or higher sanction than that suggested by this guidance it must fully explain why it considered that sanction appropriate. Such information is important so that the doctor fully understands the reasons for the decision. It is also important so that any member of the public can understand how and why the panel reached its decision. Further, in the event that the doctor considers an appeal to the High Court/Court of Session, or if the Council for Healthcare Regulatory Excellence … is considering a referral to those Courts, it is important that those concerned can reach an informed decision.”

Madam, can I take you to paragraphs 22-24 on conditional registration. Paragraph 22:

“Conditions may be imposed up to a maximum of three years in the first instance, renewable in periods up to 36 months thereafter. This sanction allows a doctor to return to practice under certain conditions (e.g. restriction to NHS posts or no longer carrying out a particular procedure). A purpose of the imposition of conditions is protection of patients.

Conditions might be appropriate where there is evidence of incompetence or significant shortcomings in the doctor’s practice … ”

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Then matters which do not concern us concerning health –

“The purpose is to enable the doctor to remedy any deficiencies in his or her practice whilst in the meantime protecting patients from harm. When the issues relate to conduct or a criminal conviction, or to untreated health problems, referral to a Postgraduate Dean is not usually a helpful way forward as they are not able to provide any useful remedial help. When assessing whether this potential for remedial training exists, the panel will need to consider any objective evidence submitted, for example, reports on the assessment of the doctor’s performance or health, or evidence submitted on behalf of the doctor, or that is otherwise available to them, about the doctor’s practice or health.

The objectives of any conditions or educational guidance should be made clear so that the doctor knows what is expected of him or her and so that a panel, at any future review hearing, is able to ascertain the original shortcomings and the exact proposals for their correction. Only with these established will it be able to evaluate whether they have been achieved. Any conditions should be appropriate, proportionate, workable and measurable, and in practical terms should be discussed fully by the panel before voting … ”

Then, madam, can I take you to paragraph 27:

“Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour. Suspension from the register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the period of suspension. It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example where there may have been acknowledgement of fault and where the panel is satisfied that the behaviour or incident is unlikely to be repeated).”

The passage in brackets I rely upon, because in this case there has been no acknowledgment of fault and in our submission the Panel cannot be satisfied that the behaviour or incident is unlikely to be repeated. Paragraph 31 is concerned with review hearings:

“Where the panel decides that a period of conditional registration or suspension would be appropriate, it must decide whether or not to direct a review hearing immediately before the end of the period. The panel must give reasons for its decision so that it is clear that the matter has been considered and the basis on which the decision has been reached. Where a review hearing is to be held the panel must make clear what it expects the doctor to do during the period of conditions/suspension and the information s/he should submit in advance of the review hearing. This information will be helpful both to the doctor and to the panel considering the matter at the review hearing.”

Can I come under erasure, please, to paragraph 33:

“The panel may erase a doctor from the Register in any case, except one which relates solely to the doctor’s health, where this is the only means of protecting

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patients and the wider public interest. The Privy Council has, however, stated that [a panel] should not feel it necessary to erase:

’an otherwise competent and useful doctor who presents no danger to the public in order to satisfy [public] demand for blame and punishment’”

You will be hearing my submissions on danger in due course. Paragraph 34:

“This must, however, be weighed against the words of Lord Bingham, Master of the Rolls, in the case of Bolton v The Law Society and adopted in the case of Dr Gupta:

‘The reputation of the profession is more important than the fortunes of an individual member. Membership of a profession brings many benefits, but that is part of the price.’”

Then paragraph 35:

“The Gupta Judgment emphasised the GMC’s role in maintaining justified confidence in the profession and, in particular, that erasure was appropriate where, despite a doctor presenting no risk:

‘The appellant’s behaviour had demonstrated a blatant disregard for the system of registration which is designed to safeguard the interests of patients and to maintain high standards within the profession.’”

May I now take you to paragraph 47, which is headed “Immediate suspension or conditions”:

“The doctor is entitled to appeal to the High Courts … against any decision to affect his or her registration. Therefore, no such decision takes effect until either the appeal period (28 days) expires, or any appeal is determined. During this time, the doctor’s registration remains fully effective unless the panel also imposes an immediate order.

The panel has the power to impose an immediate order where it is satisfied that it is necessary for the protection of members of the public, or is in the public interest, or is in the best interests of the practitioner.”

Paragraph 49:

“Where the panel has directed erasure or suspension as the substantive outcome of the case, it may impose an immediate order to suspend registration. The matter will be at the discretion of the panel based on the facts of each case. However, given the serious nature of the matter that led to the direction for erasure or suspension, the panel should consider most carefully whether it is appropriate for the doctor to continue in unrestricted practice pending the disposal of an appeal.”

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Paragraph 50:

“Where the panel has directed a period of conditional registration as the substantive outcome of the case, it may impose an immediate order of conditional registration. The test for imposing an order of immediate conditional registration is the same as those for imposing immediate suspension and although the matter is one for the discretion of the panel, the GMC is of the opinion that immediate conditional registration is highly likely to be necessary in order to protect the patients, if not the doctor him or herself.”

Madam, pausing there a moment, certainly under the old rules in my experience were you considering immediate suspension or conditions, that is a matter which you would put to the parties after making your order, so that either party can make submissions upon it at that time. I see the learned Legal Assessor nodding.

Madam, can I take you, please, to page S2-4, paragraphs 16 to 19, which is headed “Guidance on considering references and testimonials”. Paragraph 16:

“Often the doctor will present references and testimonials as to his or her standing in the community or profession. These will have been provided in advance of the hearing and the authors may be unaware of the events leading to the hearing. In any event, references written in advance of the hearing may not stand as an accurate portrait in light of the facts found proven.

As with other mitigating or aggravating factors any references and testimonials will need to be weighed appropriately against the nature of the facts found proved. The quantity, quality and spread of references and testimonials will vary from case to case and this will not necessarily depend on the standing of a practitioner. There may be cultural reasons …”

I need not trouble you with the rest of that. Then:

“Expressions of regret and apology

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. (Paragraph 22).

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 mistakes, or when things go wrong.

Good Medical Practice continues, ‘when appropriate…offer an apology’ (ibid), reflecting that in this society, it is almost always expected that a

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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.”

Paragraph 19 is one I do rely on, madam:

“This ‘insight’ - the expectation that a doctor will be able to stand back and accept that with hindsight, they should have 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. But the panel should be aware that there may be cultural differences in the way that insight is expressed, for example, how an apology or expression of regret is framed and delivered and the process of communication.”

We would submit on the question of insight that none was shown in the Clark case – Dr Southall still believed at the hearing that Mr Clark was the murderer of his two children – and none has been shown in the M case which you have to deal with. Dr Southall has shown no insight, we would submit, into what he was saying to Mrs M or indeed how he was saying it to Mrs M. He continued to deny in front of you any wrongdoing in relation to Mrs M at all. In relation to insight, and in particular in relation to Dr Southall’s insight, we would refer the Panel to the judgment of Mr Justice Collins at paragraphs 21 and 30, where he deals with that aspect in those passages which I have taken you to before.

Madam, can I now take you, please, on to the sanctions themselves? Page S1-13 deals with conditional registration. We submit that conditions are not appropriate in this case. Most of the factors set out are not present in this case and you will see that the guidance says:

“This sanction may be appropriate when most or all of the following factors are apparent … ”

May I take you to the first one:

“No evidence of harmful deep-seated personality or attitudinal problems.”

Madam, we would submit that Dr Southall does have attitudinal problems and they are shown both in the Clark case and in this case. Dr Southall’s main attitudinal problem is that he always thinks that he is right and he unswervingly follows that view whatever the consequences. Thus he still considers that he was right to pursue the issue of the manner of M1’s death in the way that he did; he maintained to the end that both his approach and his conduct at the interview and that his interview technique was correct and appropriate. Your findings show otherwise. Not only did Dr Southall accuse Mrs M of murdering her eldest son, but he also did so in a manner that you found to be both accusatorial and intimidating.

Similarly with his policy of holding original clinical information in his SC files. He maintained to the end that this was the right policy, despite the fact that others were insufficiently aware of it and despite the fact that such policy did not follow his own

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hospital’s protocol. He felt, we would submit, that, as it were, his own hospital policy was one to be followed only by lesser mortals than him.

Madam, in relation to those SC files, you have found such policy to be inappropriate, not in the interests of children and an abuse of his professional position. We would submit this all comes from attitude, his attitude that he is right. So he does have an attitudinal problem.

Madam, dealing with identifiable areas of the doctor’s practice in need of assessment or retraining, we would say this is not possible given the wide nature of your findings over a considerably different number of areas. Evidence that the doctor has insight into health problems is not applicable. I accept there is no evidence of general incompetence. As to a potential and willingness to respond positively to retraining, madam, that is simply not relevant in these circumstances, where we have a professor of paediatrics who has recently retired and does not want to retrain or it is inappropriate to start retraining people at the consultant end of their career.

“Patients will not be put in danger either directly or indirectly as a result of conditional registration itself.” We would submit that this does not apply in this case. As far as conditions to protect patients during the period for which they are in force, it is difficult, we would submit, to make any conditions which are appropriate to cover both the gravity and the width of the allegations which you have found proved in this case, save possibly a completely Draconian condition, which would be in effect an erasure, by saying that he should stop clinical practice altogether and, if he wanted to continue as a doctor in a research capacity, then so be it. That relates to “Is it possible to formulate appropriate and practical conditions to impose on registration.” We would submit it is impossible, saving the possible Draconian way which I have identified to you.

You are asked in bold at page S1-24 to consider: will the imposition of conditions on the doctor’s registration be sufficient to protect patients and the public interest? Our submission to you is a resounding no.

Going over the page to suspension at page S1-13, it says:

“This sanction may be appropriate when some or all of the following factors are apparent …

A serious instance of misconduct but where a lesser sanction is not sufficient.”

In my submission this is not a serious instance of misconduct; they are serious instances of misconduct, in the plural. We are not dealing with an isolated event here. We are dealing with a pattern of behaviour covering both attitude to patients and the system of recording clinical information.

“ - Not fundamentally incompatible with continuing to be a registered doctor”.

In my submission, where you have made on the number of occasions that you have a finding that this doctor has abused his professional position - and you have made four findings in relation to that, 6(e) 12(c) in relation to two patients and 14(c) - abusing a

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professional position is fundamentally incompatible with continuing to be a registered doctor.

“- No evidence of harmful deep-seated personality or attitudinal problems”.

We say there is evidence of attitudinal problems for the reasons that I have already submitted.

“ - No evidence of repetition of behaviour since the incident”.

I cannot rely on the fact that since one finding in the Clark case he has been found guilty of these matters because the timings are different, but I do ask you look at the echoes or parallels between this doctor’s behaviour towards Mr Clark and his behaviour towards Mrs M.

Then,

“ - Panel is satisfied doctor has insight and does not pose a significant risk of repeating behaviour”.

Our submission is that you simply could not be so satisfied.

In relation to what you are asked to consider:

“Consider: Will a period of suspension be sufficient to protect patients and the public interest?”

Our submission is no.

Then one comes to erasure at S1-15. It says,

“This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves any of the following (this list is not exhaustive):

“- Serious departure from the relevant professional standards as set out in Good Medical Practice”.

We would point to the serious departures in terms of your findings. You have made four holdings that this doctor has abused his professional position. You have made two holdings that he has acted not in the best interests of a child. You have made six holdings that he has behaved inappropriately and you have made one holding that he is in breach of confidentiality. Those in summation in our submission amount to a serious departure from the relevant professional standards.

Then,

“ - Doing serious harm to others (patients or otherwise) either deliberately or through incompetence and particularly where there is a continuing risk to patients”.

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In our submission, this doctor did cause serious harm to Mrs M by both the nature of his accusation and by the manner in which he made it.

In terms of

“- Abuse of position/trust (particularly involving vulnerable patients) or violation of the rights of patients”

our submission is that Mrs M’s rights to be treated as a human being were violated in that interview. I do not rely on the next three, but I pick up the last one, bearing in mind that I only have to establish one, as it were, for erasure:

“ - Persistent lack of insight into seriousness of actions or consequences”.

This is a crucial area in our submission. Dr Southall has never admitted that he was wrong about anything substantial. Mrs M has waited 10 years under a cloud and has great fears of the risk that other patients or parents may be treated as badly as she was. Dr Southall has showed no remorse or insight that he has done anything wrong in Mrs M’s case or indeed in Mr Clark’s case, or indeed in relation to his keeping of parallel records.

It follows that our final submission to you is that erasure is the only option available to this Panel to deal with the many defaults of this doctor. Madam, those are my submissions.

THE CHAIRMAN: Thank you Mr Tyson. Mr Coonan, looking at the time, I do not expect that you want to begin to address us today, but there may be matters you wish to raise.

MR COONAN: You are right, madam; I would prefer to deal substantively with matters tomorrow morning. There is one preliminary matter which does raise some concern on our part. That is the issue of the Attorney General’s review. It may be helpful to have C26 in front of you again. Page 6 of C26 is immediately relevant.

May I just sketch in the background concern before dealing with the content of the letter. You have been told about the review being carried out by the Attorney and you have been told that the review itself is complete. You have been told, certainly from Mr Tyson’s standpoint the reason why he has referred to that. From our stand point, the matter having been raised and, bearing in mind the contents of the second paragraph on page 6, it therefore will come as no surprise to you, and the matter is now out in the open, that I am aware of the contents of that document even though Mr Tyson might not be. I am prohibited from commenting any further as to the content of that document because of undertakings given to the Attorney by those who instruct me and, not least because of the etiquette which prevails, that Parliament should receive this document first before you do.

I think I can say this: since I am aware of the content of that document, as this letter makes clear, I have advised Dr Southall that it is in his interests that this Panel should receive that report of the review. It follows that obviously Dr Southall himself has seen

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it. The difficulty is that obviously if the report was available tomorrow there would be little problem I would imagine, but the review, based upon this last document at page 8, tells us that it is anticipated that the review would not be available within that very short timescale. The author of the email indicates that, without being bound by timescales, there is an anticipation that the publication will occur in a matter of weeks. I do not know what that means. I can only rest my observations on this document.

However, a distinction is drawn in that email between weeks on the one hand and months on the other, so we are not talking about months. I say that because sometimes the two can overlap. My principal submission to you, madam, and to your colleagues, is that before considering the matter any further you should adjourn this until this report is available, hopefully as soon as may be. There would be a real risk in our submission that Mr Tyson having introduced this matter - it was a matter for him whether he did it or not but now that he has done it - to borrow a phrase which was used earlier in this case, “The cat is out of the bag”. It is in Dr Southall’s interests that such matters as appear in that document be placed before you in the interests of justice.

As to any further refinement of what I may call the timing difficulty, obviously I cannot assist with that at the moment. The first issue, if I may respectfully suggest, would be to grapple with the principle that I have sought to identify and invite you to rule upon. If you rule that you are not prepared to wait, then obviously I will continue with my submissions tomorrow, but we would urge you not to adopt that course, but to deal with the question of principle first. The difficulty is, as I have said already, that I would dearly like to shed more light on the detail of this, but I cannot professionally. That is the difficulty I am in. Madam, in short order, that is the submission.

THE CHAIRMAN: Mr Coonan, we have a formal submission from you that the Panel should adjourn until such time as this report is available publicly?

MR COONAN: That is right.

THE CHAIRMAN: The Legal Assessor has a question for you.

THE LEGAL ASSESSOR: Mr Coonan, under the rules the Panel may consider the question of serious professional misconduct and if they were to reach a conclusion that that had been established, it would be open to them then to postpone decision on sanction pending further information about the doctor. Would an alternative approach to the one you have proposed be that the Panel should consider serious professional misconduct and then, if they thought fit, to postpone pending the production of the report. In short, does the report, if you feel able to answer this, pertain to sanction or would it be also pertaining to serious professional misconduct in your view?

MR COONAN: There are two responses to that. The first is that Mr Tyson introduced this topic for the purposes of potential relevance to serious professional misconduct. I am constrained in what I would otherwise wish to reply very fully to your, if I may say so, pertinent observation but I think I can say this, just about, that the matters are relevant to both issues. I stress that what I have seen is a draft but I do not think I can go any further than that.

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THE LEGAL ASSESSOR: In the ordinary course the Panel would be advised that, when considering serious professional misconduct, they should reach their conclusions in the light of the matters proved before them. In that context perhaps I could revert to the earlier part of my question to you as to whether your view remains that the Attorney General’s report would be pertinent to serious professional misconduct as an isolated issue?

MR COONAN: The situation has been slightly complicated because Mr Tyson introduced the topic in relation to the issue of serious professional misconduct and it is because of my concern that I rise to deal partly with that, because the Panel now have before them a submission from Mr Tyson that it is relevant to serious professional misconduct. It may be a little difficult to unravel that now. That is why I am being a little cagey about it, if I may put it that way.

THE CHAIRMAN: Mr Coonan and Mr Tyson, noting the time, I am sure the Panel would prefer to move this on tomorrow rather than get deeply into this now. Unless, Mr Tyson, you feel that your response at the moment is so brief, on the whole I think it might be preferable to return to this matter in the morning, even if Mr Coonan wishes to reiterate the point he has made then.

MR TYSON: Madam, I have a number of observations but I would prefer to keep my powder dry until tomorrow.

THE CHAIRMAN: Unless there are any matters that are urgent before we adjourn tonight, I would propose to adjourn now and pick up from this point tomorrow morning. Perhaps Mr Coonan could then briefly remind us of the point we had got to tonight. Is that acceptable?

MR COONAN: Yes, madam.

THE CHAIRMAN: We will now adjourn until tomorrow at 9.30 am.

(The Panel adjourned until Thursday 29 November 2007 at 9.30 am)

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