GENERAL MEDICAL COUNCIL
FITNESS TO PRACTISE PANEL (PROFESSIONAL CONDUCT)
Tuesday 20 November 2007
Regent’s Place, 350 Euston Road, London NW1 3JN
Chairman: Dr Jacqueline Mitton
Panel Members:
Mrs Leora Lloyd
Mr Alexander McFarlane
Mr Arnold Simanowitz
Legal Assessor: Mr Robin Hay
CASE OF:
SOUTHALL, David Patrick
(DAY TWENTY-THREE)
MR RICHARD TYSON of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the Complainants.
MR KIERAN COONAN QC and MRJOHN JOLLIFFE of counsel, instructed by Messrs Hempsons, solicitors, appeared on behalf of DrSouthall, who was present.
(Transcript of the shorthand notes of T. A. Reed & Co.
Tel No: 01992 465900)
IN D E X
Page No
CLOSING SUBMISSIONS BY MR COONAN 1
THE CHAIRMAN: Good morning everyone. The Panel is now ready to proceed, MrCoonan, when you are ready.
MR COONAN: Thank you. When we broke of yesterday, I was dealing with the case of Child D. I was just about to deal with head 11(b) in that context. Perhaps it is just timely to remind ourselves again of that crucial wording in 11(b), which is the issue of inaccessibility:
“…others involved in the medical care of the child at that time or in the future.”
By way of introduction if I could set the scene, this comment applies to each of these three children, in terms of the question of accessibility or not; that you are not, are you, concerned with any established lack of corporate knowledge or lack of knowledge at Chief Executive level, if, if that be established. The issue here is precisely here as it is said in the heads of charge.
With that in mind, the next observation to make is that– and it is again something that applies to the other two cases– you have heard no evidence from any clinician, nurse, specialist nurse, the medical records department or any other person involved in the management of records for the purposes of clinical care. The issue is, as it is for the other two children, whether or not any inference can be drawn at all from this body of material we are going to look at together, of lack of accessibility or knowledge on the part of the people who really do matter for these purposes, or is it just an inference that can be drawn that the people at the top may, may not have known?
One has to look carefully at the story of MrsD in her attempts to seek disclosure of these records. MrTyson has put in the spread sheet at C21. You will have it at hand and you will be able to look at it in more detail when you retire. Iam not going to take you slavishly through it. I will highlight some of the references that MrTyson has put in. It is not an agreed document because it has many, many comments of his which– and I will deal with this later– we do not accept. It is not an agreed document even though you have given it a C number. You will need bundleC2, tab4(k).
Iam adopting this approach in an attempt to make the spread sheet come alive and to try to focus on what are, we would say, the really relevant documents in this clip of material which sheds light on this issue that you have to resolve. Many of these documents are of course not themselves particularly relevant to the point in issue.
Madam, the story begins, if one looks at page1 of the clip, on 13October1997, when MrsD writes to MrBlythin. He was at the Trust. In fact it was to MrFillingham but MrBlythin dealt with it by requesting Child D’s medical notes in October1997. MrsD told us that it was a MrBlythin who sent her 18pages of notes from the main file. There is no dispute about that. Those 18pages are captured for us in tabs (g) and (h). If you count up the pages in tab (g) and tab (h) in this section, that is clearly what MrsD is talking about. She is absolutely right, there are no SC files there.
Precisely why the SC file was not sent at that stage remains an open question. You have not heard from either MrFillingham or MrBlythin. We do not know what steps were taken at – and Iam going to use this, I hope, compendious expression which Ihope is helpful– corporate level. Whatever the reason for nondisclosure by the Trust at Stoke, at that stage it cannot sensibly, we would say, raise an inference that the clinicians, or any of those associated with the clinicians, would not, if they needed to, have been able to get access to the Special Cases files. It is such a speculative leap to make, to use the fact that the request did not produce any additional documents.
That is the first and perhaps the important point to make about MrsD as the rest of the story will indicate. MrsD realised, as she told you, from the body of the 18pages, which you can look at in taps (g) and (h) that there was indeed a further file in existence with an SC number. The reference is in the spread sheet, and it is at Day6/72B. She was correct. Just as an aside, you can see at once that, to her, she was able to see immediately the internal signposting within the main medical records.
What did she do? She did the sensible thing which is to write to the Chief Executive specifically requesting the Special Cases files. You see that on your page 2 of this clip. The Trust did not respond for some time. Note the emphasis “The Trust” not DrSouthall. They delayed. In January1998 MrsD, you may think perfectly understandably, wrote to the Trust. You will find this on page11. She suggested that the reason for the delay was because the Trust did not know about the Special Cases file.
May I pause there. It is, you may think, not surprising that MrsD expressed that opinion in her letter to the Trust. She had been given no reason thus far by the Trust why it had not given the Special Cases file. You may think it is a natural response to say, “Well, that is because you did not know”. Of course, that belief on her part, although entirely reasonable as a belief, does not establish the fact that they did not know, quite obviously. It now appears, as we will see from the correspondence, that the Trust’s stance in respect of this material was based on legal considerations. Very importantly, nobody has been called from the Trust, including MrFillingham and MrBlythin, to say, in effect– in response to the letter setting out MrsD’s belief – “Yes, Mrs D was absolutely right, we did not know about the SC files at all”. There has been a deafening silence. It would have been the easiest thing in the world, you may think, for the other side of the room to have called somebody, anybody, to say, “Absolutely, we did not know”. In February1998, on 3February1998– and if you turn to page12 you will see the significance of this – MrFillingham, Chief Executive, writes to MrsD to say that the Trust is taking legal advice.
Pausing for one minute. This is the first response of the Trust, in February, since MrsD had written specifically to the Chief Executive, not to DrSouthall, in November. We are talking nearly three months delay. Mr Fillingham’s response is, “We are taking legal advice and we are taking legal advice from the Lewington Partnership”. Lewington partnership, and I think I can uncontentiously comment, at that time were a very wellknown firm of solicitors who dealt with Health Trusts, particularly in the Midland area.
The question put for legal advice was whether this material should be disclosed. He sets that out on this document. We have only been given a redacted version of the letter, but no matter, even on the basis of that redacted version, that is clearly what the Trust is considering.
Some two months go by and on 30March1998, page16 of the clip, and it will possibly bear scrutiny particularly in the second paragraph, MrFillingham writes and refuses to disclose the material in documentation from agencies such as Social Services– leave that aside for a minute– Great Ormond Street and East Berkshire Health authority:
“The Trust is unable to disclose those documents as they are confidential and do not form part of [Child D’s] records.”
So, we have here, following legal advice– and let us leave aside for the minute whether that was good or bad legal advice– the Trust’s view, which was, “You cannot see them”. The reason is because they are confidential and did not form part of the child’s medical record. A number of observations may flow from this. There can be no doubt that from at least February1998, even on his case, the Trust have known, even at Chief Executive level about the existence of Special Cases files.
It is an interesting point since, as we now know and I will demonstrate, Mrs D did not get these notes until 2003.
MR TYSON: She got some documents from the SC files as a result of this letter. It says so in terms.
MR COONAN: I would be grateful if my learned friend did not interrupt my speech, but I will deal with this in a moment. The SC file as a file was not handed over to her until 2003 and the basis of that refusal, it would appear, has its origins in the legal advice which the Trust took in 1998. The advice which appears to have been given – and it is not for me to invite you to take a view as to whether it was right or wrong, but clearly it was advice. It certainly does not accord with Professor David’s analysis of the position and nor does it accord with DrSouthall’s position in front of this Panel. DrSouthall’s position in front of this Panel is exactly the same as Professor David’s.
Looking at the letter there is an indication of some documents which would appear or may appear from the letter to come from the Special Cases file, and we have some evidence to that effect from Mrs D. Quite on what basis Mr Fillingham et al at the Trust were making a distinction, and so on, is at best speculative. All one can do is to look and infer that it must have been as a result of that legal advice. The legal advice clearly was sought by the Trust and given to the Trust.
Mrs D – and we are with her on this – was clearly not satisfied. You can imagine why. I think I can deal with this in a compendious way and you can look at the spreadsheet and make your own judgement. What it amounts to is that she made various complaints to the Trust about their handling of this issue and also made a complaint to the Ombudsman about this issue. The Ombudsman declined jurisdiction; that is a matter of fact.
I should just invite you please, when you look at the correspondence that I have suggested can be rolled up compendiously at this part of the case, just to enter a caveat, because if you look at some of the later correspondence in C2(4)(k), it contains references in the correspondence to what Mrs D says third parties have told her as to the underlying reason or reasons why the documents are not being disclosed, and as to reasons about their status. In one particular letter you will see that there is an assertion she makes that somebody at the Trust had told her that it cannot be disclosed because they were DrSouthall’s personal property. DrSouthall has never claimed that; there is no evidence that he claimed that. In any event, none of these third party witnesses have been called before you. It is not DrSouthall’s property to own.
All these references that I am now dealing with should, in my respectful submission, be put to one side. Mr Tyson has included them in the spreadsheet. At best that is unhelpful, at worst positively misleading. What you have to deal with is the question of whether this correspondence and the fact of non-disclosure helps you in any way to establish whether or not charge 11(b) is proved. I reiterate that Mrs D’s belief, on whatever basis she may have expressed the belief, does not equivocate to fact.
On 29 March 1999, at your page 26 of tab k, Mr Blythin wrote to Mrs D and repeated what I call the “Fillingham Line”, that the Special Cases files’ correspondence was not disclosable. What he says is:
“I confirm that there is no additional documentation other than that which was sent to you on 30th March 1998. There is, however, copy documentation from agencies such as Slough Social Services, East Berkshire Community Health and Southampton General Hospital which the Trust is unable to disclose.”
That, in effect, is a repetition, is it not, of what I call the “Fillingham Line.” That letter, you heard from DrSouthall, was not on his instructions (Day 11/25E) and again represents the stance taken by the Trust. Indeed, the stance taken by the Trust, as we now know, following legal advice, does have a resonance with DrSouthall’s own position at that time. If you now just turn, please, to bundle C2, tab 6(b), you will see that DrSouthall there, in actually giving Mrs Dawson the actual special case file, sets out his view. That view, as you can see in the last two and a bit lines, is not dissimilar, is it, to the distillation of the advice that the Lewington Partnership must have given to the Trust. That, of course, is not the position that DrSouthall adopts before this Panel, but it clearly was a view he had then in 1999 and it would appear that that view that he had in 1999 was finding support from the Trust solicitors also.
As I say, it may not have been the correct “advice”, it may not have been the correct view or analysis, but it appears to have had a proper, a sound, basis. As we will see when we look at Child H – and you want just to put a little marker here – a very similar view was taken, would you believe it, by Field Fisher Waterhouse when they were acting for Great Ormond Street in 1994. We will come on to that in a minute.
Eventually, and again I can, as it were, compress this part of the correspondence, after the inquiry which we know took place in Stoke in 1999/2000, Mrs D got hold of the entirety of the Special Cases file, as I have already said, from the Trust in 2003. Why the Trust should take that view and not give it to her until 2003 is a matter for the Trust, not for DrSouthall. If you require to know why, as it would be entirely natural, Isuggest, for you to want to know why, you are entitled, perhaps, to expect an explanation from the other side of the room for that delay rather than simply appearingly to lay it at DrSouthall’s door, because it simply does not stick. Indeed, it is probably because of all that that Mr Tyson in his closing speech to you was driven to concede that it was not suggested that DrSouthall had what he called a personal role, but that the spreadsheet shows that the Trust did not know of the existence of the Special Cases file until 1998.