Southall v General Medical Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Leveson,Lord Justice Dyson,Lord Justice Waller,Sir John Dyson SCJ
Judgment Date04 May 2010
Neutral Citation[2010] EWCA Civ 484,[2010] EWCA Civ 407
Docket NumberCase No: C1/2009/1239

[2010] EWCA Civ 407

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon Mr Justice Blake

Before: The Rt. Hon. Lord Justice Waller

Vice President of the Court of Appeal (Civil Division)

The Rt. Hon. Lord Justice Dyson

and

The Rt. Hon. Lord Justice Leveson

Case No: C1/2009/1239

CO/11559/07

Between
Dr. David Southall
Appellant
and
The General Medical Council
Respondent

Mary O'Rourke Q.C. and Oliver Williamson (instructed by Hempsons, Manchester) for the Appellant

Monica Carss-Frisk Q.C. and Richard Tyson (instructed by Field Fisher Waterhouse, Manchester) for the Respondent

Hearing dates: 22-23 March 2010

Lord Justice Leveson

Lord Justice Leveson:

1

This is an appeal from the judgment of Blake J, [2009] EWHC 1155 (Admin), dismissing in its entirety an appeal brought by Dr David Southall from a decision of the Fitness to Practice Panel of the General Medical Council (“the panel”) whereby, on 4 th December 2007, it found him guilty of serious professional misconduct and directed that his name be erased from the register of medical practitioners pursuant to section 36 of the Medical Act 1983 as amended. Permission was refused on paper by Goldring LJ; on renewal, Mummery and Moore-Bick LJJ ordered the application be adjourned to a full court with the appeal to follow immediately if permission be granted. During the course of the hearing, the court concluded that there were compelling reasons for permitting a second appeal and granted permission.

2

Each of the adverse findings made by the Fitness to Practice Panel was challenged before Blake J. Two sets of adverse findings (relating, first, to sending a copy of a letter concerning child H to an unnamed paediatrician at a hospital to which the child might have been taken and, secondly, to the creation of special case files separate from hospital records thereby damaging the integrity of the records as a whole) are not now the subject of challenge. This appeal centres upon what everyone connected with the case has always recognised as the most serious adverse findings although, on the face of it, the issues were straightforward to identify. In short, based upon the evidence of Mrs M, said to be supported by early complaint to her solicitor and a child psychiatrist, it was alleged that, at an interview on 27 th April 1998, Dr Southall accused Mrs M of drugging and murdering her 10 year old son (“M1”), who, tragically, had died by hanging nearly two years earlier. Dr Southall admitted that he had probed the circumstances of M1's death and accepted that Mrs M might have perceived that he was accusing her of murder, but he maintained that he did not, in fact, do so. He was supported by the evidence of the social worker who was in the case and present at the interview. Having heard evidence from each of these witnesses (and others to whom Mrs M spoke in the days that followed), recollecting with the aid of notes conversations over 8 years earlier, the panel accepted the evidence of Mrs M and, although not explicitly stated, must have rejected that of Dr Southall and the social worker. On the face of it, the issues are whether it approached the determination of this question in the right way and whether it was entitled to reach the conclusion that it did based upon the reasons that it gave.

3

Ms Mary O'Rourke QC for Dr Southall argued that lying beneath the surface of these issues is a far more serious question which touches upon the approach which paediatricians and other professionals are required to or should adopt in relation to investigating whether children with whom they are concerned are being or have been abused. On the one hand, in this case, what was found to be inappropriate, accusatorial, intimidating questions which the panel concluded abused the doctor's professional position and added to the distress of a bereaved person (to summarise the other charges which were found proved) led to the erasure of the doctor. On the other, public criticism of the failure of professionals to identify abusive relationships and then take appropriate steps to protect children (evidenced contemporaneously in relation to a child known as Baby P whose parent was convicted of permitting the harm and death of her child) has led to the concern that, in connection with child protection issues, a paediatrician will be “damned if he does and damned if he doesn't”; that argument is supported by statements from prominent paediatricians. Ms Monica Carss-Frisk QC for the General Medical Council (“GMC”), responding to this appeal, challenged that view. She submitted that this issue did not arise; the case turned upon a straightforward issue of fact i.e. whether Dr Southall had expressly accused Mrs M of drugging and then murdering M1 by hanging him, it not being suggested that if Dr Southall had done so, he was not guilty of serious professional misconduct. It was not suggested that the other charge in connection with Mrs M reflected different issues.

The Facts

4

Dr Southall is a consultant paediatrician of national and international renown; he has done pioneering work on child abuse and has been recognised as an expert in that field. In the late 1980s, he pioneered and published work in the field of Covert Video Surveillance which demonstrated that some parents deliberately and covertly cause harm to their children: that approach to the collection of evidence was undeniably controversial and he has clearly been a controversial figure for some time. Between 1979 and 1992, he was based at the Royal Brompton Hospital London; thereafter he was a consultant at the University of North Staffordshire at Stoke on Trent. Until recently he was also a Professor of Paediatrics at the University of Keele. Even a short chronology of his career is not complete, however, without reference to the fact that, in circumstances generating considerable public interest, on 6 th August 2004, arising out of his behaviour in April to June 2000 in connection with the husband of Sally Clark who had herself been convicted of murdering two of her children (which convictions were subsequently quashed on appeal), he was found guilty of serious professional misconduct by the Professional Conduct Committee of the GMC and conditions were imposed upon his registration. The events which formed the subject of this complaint took place in early 1998, two years before the conduct later criticised and nearly six years before that GMC hearing.

5

The story of this complaint starts in 1996. Mrs M was the mother of two boys born in 1986 (described in the papers as “M1”) and 1988 (“M2”). On 3 rd June 1996, Mrs M found her son, M1, suspended by a belt that had been looped round a curtain pole in his bedroom and was round his neck. He was dead when she found him; attempts at resuscitation were unsuccessful. Following his death, there was an inquest which was convened on the 9 th July 1996. Mrs M gave evidence in accordance with a statement that she had made earlier to the police detailing these circumstances. She explained that M1 had been having disciplinary problems at his school and on the day of his death, which was the first school day after the Whitsun half term break, had been put on headmaster's disciplinary report; she had grounded him that evening thereby preventing him from going out to play with his friend. There was some evidence that he had previously been in a depressed state of mind and that he had complained to his mother and others of bullying but the school had no evidence that he had been subject to any sustained bullying. The school also disputed specific allegations that a teacher had been indifferent to his having been bullied. Of particular significance, the inquest heard that M1 had spoken to two of his school friends on the day of his death indicating that he would not be at school the next day because he was proposing to kill himself. The friends did not take these threats seriously; similar comments had previously been made without incident.

6

At the inquest, the issue for the coroner was whether M1 had intended to take his life when he hanged himself from the curtain pole. The medical cause of death was that the carotid arteries passing to the brain had been compressed by the belt which had cut off the blood supply to the brain; death would have occurred following loss of consciousness within a matter of seconds of the compression. The pathologist noted a needle puncture on the inner side of M1's right elbow and attributed this to attempted resuscitation. There was no suicide note and because intentional suicide was rare in a child of such tender years the Coroner was not satisfied to the requisite criminal standard that M1 had intended to kill himself. An open verdict was returned.

7

In August 1996, in the aftermath of M1's death, the family were referred by the school to family counselling services where Mrs M and M2 were interviewed by a child psychiatrist, Dr Alison Solomon, who, by the time of the panel hearing, had married and was known as Dr Corfield: for clarity, I shall refer to her as Dr Corfield throughout. In October 1996, the Social Services Department of the relevant County Council convened a Part 8 review into the circumstances of M1's death and received input from the police, the school and others. No new information came to light as to the circumstances or what may have caused him to kill himself, intentionally or otherwise. There matters rested.

8

These were not the only difficulties facing the family. Over the years, Mrs M had had a volatile relationship with her...

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