Southall v General Medical Council [2010] EWCA Civ 407

Case 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
CO/11559/07
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/04/2010
Before
THE RT. HON. LORD JUSTICE WALLERVice President of the Court of Appeal (Civil Division)THE RT. HON. LORD JUSTICE DYSONTHE RT. HON. LORD JUSTICE LEVESON
Between
Dr. DAVID SOUTHALLAppellantTHE GENERAL MEDICAL COUNCILRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mary O’Rourke Q.C.and Oliver Williamson (instructed by Hempsons, Manchester) for AppellantMonica Carss-Frisk Q.C.and Richard Tyson (instructed by Field Fisher Waterhouse, Manchester) for RespondentHearing Hearing dates : 22-23 March 2010
JudgmentLord 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 4th 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 27th 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 6th 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 3rd 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 9th 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 husband (“Mr M”) and had been the victim of domestic violence. Furthermore, Mr M had served a prison sentence for breach of an injunction preventing harassment and assault. There were a number of attempts at reconciliation which subsequently broke down.[9]In January 1998 (by which time Mrs M was living apart from Mr M), new concerns reached Social Services as to the welfare of Mrs M’s second son, M2. Mrs M was a theatre orderly who worked in the local hospital; her departmental head, Mrs Gray, had been troubled at the amount of time off work that Mrs M had been having. Mrs M explained to her employers that she had been taking time off work because M2 had been depressed and had made statements to the effect that he might kill himself. At that time, the family were still living in the council house where M1 had died and M2 was occupying his brother’s bedroom. February 1998 would have been the month of M1’s birthday and his brother’s death may well have been on M2’s mind. In M2’s case, there were also disciplinary concerns at school and, again, disputed suggestions that he had been the subject of bullying.[10]Both M1 and M2 had had a significant number of attendances at GP’s and hospital with injuries, none of which had raised any suspicions of non- accidental injury at the time. M1 had in the past been taken to hospital with suspected appendicitis and had had his appendix removed although in the event the appendix was normal and this was a false alarm. At the time that M2’s case was referred to social services on the 16th January 1998, he was in hospital with suspected appendicitis. His mother had kept him off school as she was concerned as to his health in this respect and there was some report of his passing a black stool which is an indicator of possible intestinal bleeding.[11]Francine Salem, a social worker of some ten years experience, was assigned to consider the case of M2. She had concerns whether Mrs M may have been suffering from attention seeking behaviour formerly referred to as Munchhausen’s Syndrome by Proxy (MSBP) and now known as Fabricated or Induced Illness (FII). As a consequence, she was concerned generally for the welfare of M2 and whether he was at risk from his mother as a result of a variant of FII known as Parental Induced Illness (PII). She expressed those concerns in a file note dated 21st January 1998. Two days later, she telephoned Dr Southall at his hospital at Stoke on Trent nearby. Her record of that conversation indicates that Dr Southall supported her concerns and suggested that she needed him on board. It turns out that Dr Southall was well known to Mrs Gray’s husband who worked with him in the Stoke Hospital and that prior to contact with social services she had raised her concerns with Dr Southall who had referred her to social services who had accordingly been notified of this concern by another person.[12]On 28th January 1998 Ms Salem and her manager visited Dr Southall at his hospital. Her file note records that he was “still of the opinion that mother has a Munchhausen’s Syndrome” and that there was a high risk to M2 who should be removed straight away. A strategy meeting between the relevant agencies was held the following day the result of which was that, on the 29th January 1998, Ms Salem obtained an Emergency Protection Order from Justices because of concerns of an immediate risk of physical abuse; this was based in substantial part on the advice she had received from Dr Southall. A further strategy meeting was held on the 29th January when it was resolved that the social services would seek an interim care order pending investigation into various hypotheses of harm that M2 might suffer that included MSPB. In that context Ms Salem had expressed concerns about the circumstances of M1’s death. The file note records that the police were to investigate that death further. On 2nd February 1998, on the basis of his conversations with Ms Salem and the information that she had provided him about her knowledge of the family circumstances, Dr Southall wrote a preliminary report into M2 reiterating his concerns for his safety if left with his mother. At that time M2 was with foster parents pending the hearing of the interim care order. On 25th February 1998 there is a file note that Dr Southall had tasked Ms Salem with obtaining information about the observations of the scenes of crime officer and related data from the inquest into M1’s death. On 4th March there is a file note indicating that the police were not going to re-open the inquest into M1’s death although they would seek some clarification from Mrs M as to how the belt was attached to the pole. In the meantime, Dr Corfield had spoken to M2 whilst he was in foster care.[13]There was a hearing before Judge Tonkins at the County Court as to whether a case for an interim care order had been made out. Dr Corfield gave evidence in those proceedings. In a judgment, dated 10th March 1998, described by Blake J as “very helpful”, ten areas of concern or potential concern were identified; the last two were concerns about the circumstances of M1’s death and the threat to M2 from his mother. The judge made the point, however, that although those concerns had given rise to the emergency protection order, matters had moved on and they were not now the basis for the interim care order. A combination of M2’s apparent depression and suicidal thoughts and the potential impact of domestic violence on the welfare of this child meant that the threshold for an interim care order was made out; nevertheless, Judge Tonkins refused to make such an order, largely based upon the evidence of Dr Corfield that M2 was finding the experience of living away from his mother traumatic and wanted to be back with her. Thereafter M2 was returned to his mother’s care and when next interviewed by Dr Corfield appeared to be happier and doing well.[14]Notwithstanding the order, it was still contemplated that there would be further social services investigation into M2’s welfare and a possible application for a full care order in due course. A number of experts were to be instructed to assist; two were jointly instructed by the local authority, the guardian ad litem and both parents (who were separately represented). These were Dr Dora Black, a child psychiatrist and Dr Terence Stephenson (incorrectly referred to as Dr Stevenson), a paediatrician. On the 17th March 1998, Dr Southall was instructed on behalf of the local authority alone to give a medical opinion on matters of concern that were identified in the letter of instruction. In April, further information, including the records of the inquest, was supplied to Dr Southall. He then said that he would like to interview both Mr M and Mrs M at his hospital in connection with his report. He had originally indicated that he would also want to interview M2; being told that M2 had now returned home and another paediatrician was involved, he did not persist with that request.[15]The appointment was arranged for 27th April 1998. Mr M was unable to attend the arranged interview, apparently because of work commitments. Mrs M was informed that she should obtain a travel warrant or assistance from an accompanying social worker to travel to University Hospital of North Staffordshire. When she arrived, she was surprised and discomforted to discover that Francine Salem was present in the room with Dr Southall. It transpired that this had been at Dr Southall’s request. The reason why he requested her presence and why she agreed to it was explored in some detail in the evidence before the panel. Mrs M indicated that it had not been explained to her precisely why Dr Southall wanted to interview her, but she understood it was connected to a suspicion that a diagnosis of MSBP might be appropriate and that this was one of the reasons why Ms Salem had obtained the Emergency Protection Order. Additionally, she said that there was no explanation given for Ms Salem’s presence or her role at the interview: had she had known in advance that Ms Salem would be there, in the light of her previous experiences in the interim care hearing, she would have asked for her solicitor to be present.[16]What happened during the following interview (lasting between one and two hours) is at the very heart of the complaint that Dr Southall faced. There is no doubt that he discussed the circumstances of M1’s death and it was common ground that he postulated three ‘scenarios’. The first was that M1 had died accidentally through experimentation. The second was that he had intended to kill himself. The third was that he was murdered. In relation to the last ‘scenario’, Dr Southall was clearly very concerned about the mechanics, for it was equally common ground (and evident from the report that Dr Southall wrote in May 1998 following the interview) that there had been a discussion around the issue that a 10 year old child would probably have to be sedated before suffocation/asphyxiation by hanging; that Mrs M was the only other person in the house; that Mrs M thought that sedation had been excluded at the post mortem (with Dr Southall making the point that there was no evidence of toxicology being performed) and that she ‘categorically’ denied asphyxiating M1. It is clear that there was further discussion about a number of topics, all of which indicated, at the very least, Dr Southall’s suspicions surrounding, if not disbelief of, the account which had been accepted. These topics included: the belt that M1 had used (Dr Southall told Mrs M that he did not consider that it belonged to M1) and the way in which it was tied; M1’s weight and height (and whether the curtain pole would have broken); the curtain pole itself (Dr Southall expressing disbelief when she said that it would not come down when she attempted to grab hold of it and pull it down); Mrs M’s knowledge, as an orderly in the operating room of a local hospital, of injections (Dr Southall’s concern being about a puncture mark in M1’s arm which had been considered to have been part of the resuscitation attempt and his disbelief at Mrs M’s answer that she had not seen injections).[17]What was in fundamental dispute was Mrs M’s evidence as to precisely what was said to her and the way in which she was treated. She gave her evidence (notwithstanding objection from leading counsel on behalf of Dr Southall) over a live link from Australia where, I presume, she now lives. In relation to the third ‘scenario’, she said that Dr Southall had asserted:
“This is what I think happened, I put it to you that you killed your son by injecting him, hanging him up, leaving him there to die, and then ringing the ambulance”
. The accusation of murder, she said, had been repeated more than once. Further, throughout the interview he had spoken to her “sarcastically” and in a tone that was “very aggressive”, “unprofessional”, “aggressive and uncaring”, expressing disbelief and commenting that “if I did not answer [questions] I must be hiding something”. She accepted Counsel’s description that he was “somebody who is just steamrollering his way through this interview” and “kept interrupting me when I was explaining”.[18]Dr Southall, on the other hand, was equally clear. He conducted a professionally proper interview in the presence of a senior social worker. He did not make adverse comments at the interview; although Mrs M might have had the perception that he was accusing her of killing her son, he did not do so. In that regard, he was supported by Ms Salem who described Dr Southall’s demeanour as “very polite and very open” and courteous; she denied that he was aggressive, accusatorial saying that he was not in her opinion threatening; he did not express disbelief to Mrs M and neither did she recollect him interrupting her. She rejected the suggestion that he had accused Mrs M of murder and said that she was sure that she would have remembered had that happened; she would have made a note of it and taken it to her manager because she would have been concerned about it.[19]Both Dr Southall and Ms Salem had contemporaneous notes of the interview although Dr Southall did not note a discussion of the three ‘scenarios’ and although Ms Salem did mention the three possibilities, her notes do not provide detail of precisely what was said about the third. In addition, following the interview, Mrs M spoke to her solicitor, Mrs Elinor Parry. This was followed by a meeting on 29th April of which the solicitor kept a handwritten note which she followed with a more detailed, typed, attendance note. On 28th April, she also saw Dr Corfield, who produced notes of this interview. In the context of the challenge which Dr Southall mounts to the conclusions of the panel, I shall return to the contents of these notes and the evidence that their makers gave.[20]The upshot of the meeting and the other work that Dr Southall did in connection with this case was a 34 page report (dated 20 May 1998) in which he analysed all the evidence (including that given at the inquest, the medical notes in respect of M1, M2 and Mrs M, together with other reports and notes) and raised a number of the concerns which he put in his report as italicised comments in bold. These included a comment, in the context of a needle puncture mark found on M1’s arm that he could not believe that Mrs M (who worked assisting in an operating theatre) had never seen an injection given to another person (although he concluded that he suspected the mark was part of a resuscitation attempt). He also was concerned that the 44 inch belt could not possibly be a child’s belt (although Mrs M had been “adamant” that it had belonged to M1) and expressed the view that he found it difficult to believe that Mrs M (weighing 13-14 stone, with the additional weight of M1), could not pull the curtain pole off the wall. As to the third scenario (murder), he wrote:
“The third possibility was that Mrs M had killed M1. A discussion ensued about this, including the concept that at 10 years old it would be quite difficult to deliberately suffocate or asphyxiate M1 and then pretend to hang him. Probably some form of sedation would be involved. Mrs M assumed that this had been excluded at the post mortem, Professor Southall pointed out that he could not find any evidence as to whether or not toxicological analysis had been undertaken on M1 after his death. Mrs M categorically denied asphyxiating M1 and reiterated her view that he deliberately killed himself because of bullying by pupils at the school and by his teacher…”
[21]Having expressed his concerns, Dr Southall concluded in this way:
“I find it extremely difficult to know how to advise the court on this very complex family situation. There remain such a lot of unanswered questions that I feel further investigation is required. I remain concerned that M2 is at significant risk of harm. This risk could relate to the potential for child abuse, possibly life threatening or to emotional mismanagement. What ever happens, I am sure that Mr and Mrs M need a considerable amount of counselling and support, if further major problems in this family are to be avoided.”

The Approach of the Panel and Blake J

[22]The primary charges which the panel had to consider in relation to Mrs M were in these terms: “5.(a) For the purpose of preparing your assessment/report you interviewed Mrs M on the 27th April 1998(b) During the course of such interview you accused Mrs M of drugging and then murdering child M1 by hanging him 6. Your actions as set out in 5. b) above (a) were inappropriate (b) added to the distress of a bereaved person (b) During the course of such interview you accused Mrs M of drugging and then murdering child M1 by hanging him (a) were inappropriate (b) added to the distress of a bereaved person(c) were an abuse of your professional position”.[23]Additionally, there were further charges in relation to Mrs M and another mother, Mrs D. The applicable parts of these charges were: “17. ….[y]ou failed to treat [Mrs M and Mrs D] in the ways set out below or any of them:(a) politely and considerately … (c) respecting their privacy and dignity. 18. Your failure/s under paragraph 17 … (a) were inappropriate(b) were in breach of your duty to establish and maintain trust between yourself and the children’s mothers while they were acting with parental responsibility(c) caused distress to each individual woman.” (a) politely and considerately … (c) respecting their privacy and dignity.[24]That part of the charge reflected in paragraph 5(a) was, of course, admitted. The panel found each of the other parts of the charges set out in paragraph 5 and 6 proved expressing themselves in these terms: “The panel found Mrs M to be a clear, honest and credible witness. You accused her of drugging and then murdering M1 by hanging. This is supported by the notes written shortly after the interview by Dr Corfield on the 28th April 1998 and Mrs Parry, Mrs M’s solicitor on the 29th April 1998. Dr Corfield’s hand written note includes the verbatim statement that she says was made by Mrs M ‘they didn’t do toxicology; it’s quite possible you drugged him first’. Also the panel notes your report where you describe Mrs M as categorically denying asphyxiating M1. As to Ms Salem in many respects the panel did not find her evidence to be wholly convincing ...You were a registered medical practitioner and in that capacity you were instructed by [the] County Council to provide an independent expert report to the court. Although Mrs M was not your patient, your action in accusing her of drugging then murdering Child M1 by hanging was inappropriate, added to her distress and was in the circumstances an abuse of your professional position”.[25]In relation to the charges set out in paragraphs 17 and 18 (which were not the subject of any further particulars), the panel found them not proved in relation to Mrs D and also found 18(b) not proved in relation to Mrs M. They expressed themselves in these terms:
“The panel has found that during the interview on 27 April 1998 you questioned Mrs M in an accusatorial and intimidating manner. The panel found your report dated 20 May 1998 to be significant in that it is supportive of Mrs M’s evidence. Head 17c has been found proved in that you failed to respect Mrs M’s dignity by reason of the accusatorial and intimidating manner in which you questioned her. … Head 18a has been found proved. Head 18b has been found not proved. The panel was not satisfied that there was a duty to establish and maintain trust between you and Mrs M. She was not your patient. You were instructed by … County Council to prepare an independent expert report for the court. Head 18c has been found proved.”
[26]Before Blake J, Stephen Miller Q.C. (then appearing for Dr Southall) identified a number of features which, he submitted, demonstrated that the panel could not, consistently with the criminal standard of proof, have preferred the evidence of Mrs M and rejected the evidence of Dr Southall. He pointed to the presence of an independent professional witness (Ms Salem) whose notes and evidence did not support the core allegations and were dismissed without proper reasons. He noted inconsistencies in Mrs M’s evidence and challenged the panel’s reliance on Dr Corfield’s manuscript note as supporting her account when, in truth, by recording that she “felt” she had been accused, it was consistent with Dr Southall’s acknowledgement of the perception but was different from actually being accused. He pointed to the fact that neither the solicitor nor Dr Corfield would have failed to express disapproval of Dr Southall’s behaviour had Mrs M described it in the terms of her evidence: neither did so. He also made the point that Dr Southall had been concerned with the mechanism of death because of the weight which the curtain pole would have had to bear; he would not have accused Mrs M of killing her son by drugging and murdering him (as alleged in the complaint) when he thought death probably did not occur in this way.[27]For the GMC, Mr Robert Englehart Q.C. (who then appeared) countered each submission. First, the panel had found Mrs M credible; that finding was not challenged and minor inconsistencies did not significantly impact on her reliability. By contrast, the panel did not find Ms Salem to be convincing being unable to recall certain details but being sure about the tone and attitude both of Mrs M and Dr Southall. In that regard, it was said to be relevant that Dr Southall and Ms Salem had both very readily and on no reliable material reached a conclusion that M2 was at risk of physical harm from Mrs M and that the interview was directed to producing evidence to support a challenge to her account. As for Dr Corfield, the phrase “felt she was being accused” was hers rather than a quote of Mrs M. Her failure (and that of the solicitor) to complain was irrelevant: the fact is that the solicitor’s notes clearly recorded a complaint of accusation of murder. Finally, at the hearing, Dr Southall had not challenged the cause of death as hanging: whatever doubt he might have had about the precise mechanism was irrelevant to his belief that Mrs M had murdered M1 by drugging him and then using the belt in such a way as to cause the injuries observed by the pathologist.[28]There are aspects of the judgment of Blake J on wider issues to which I shall return, but he addressed Ms Salem’s evidence and the inferences to be drawn from the language used by Dr Southall in the 20 May report and, in particular, his comment that “Mrs M categorically denied asphyxiating M1 and reiterated her view that he deliberately killed himself because of bullying by pupils at the school and by his teacher” observing (at [64]) that:
“...a categorical denial of this scenario is highly consistent with an allegation being put that leads to the denial. The denial was both of the allegation of asphyxiation and the suggestion that he hadn’t killed himself because he hadn’t been bullied. The categorical denial is also consistent with Ms Salem’s typed notes of the interview in which she recorded Mrs M saying she would talk about the belt around M1’s neck “if it cleared her name” and “as she felt she wanted to prove her innocence”
. No-one could have challenged her innocence apart from Dr Southall.”[29]On this issue, therefore,

the judge concluded ([65]):

“In my judgment, therefore, the panel were fully entitled to reach the conclusions it did in respect of the case of Mrs M. Its conclusions are sufficiently explained both by the reasons it gave and the detailed scrutiny of the transcript that the court has been invited to undertake. It was entitled to conclude that Mrs M was an impressive, credible and reliable witness in the central issues of the case. There is no reason to conclude that the panel misdirected itself, took account of extraneous circumstances or had failed to remember or give appropriate attention to the evidence of Dr Southall when it reached its conclusions a year later. Dr Southall would have been well aware why he lost.”

The Wider Issues

[30]Before addressing the narrow questions which were before the panel (did Dr Southall expressly accuse Mrs M of drugging and then murdering M1 by hanging him and in what manner did he conduct the interview?), it is appropriate to refer to wider issues. The GMC recognise that Dr Southall was cross examined about a number of matters, said to form part of the background and to identify the mindset, which coloured his approach. He was asked why he was challenging Mrs M’s account of the incident and why he had come to an early diagnosis of MSPB without any papers. The follow up was to ask whether it was not the function of the police to investigate the death of M1 and not his “as a sort of amateur sleuth” and that he was focussing on the death of M1 in relation to toxicology, his interest in the curtain pole and the belt. There was then this exchange:
“Q. Would it not be more appropriate to leave all your concerns, having listed them, for the police to investigate rather than for you to investigate subsequently at an interview with the mother? A. Well that is not what I have been doing for years, and for years I have been supported in doing the work I have been doing. The results are well known. Q. And, I am sure you would accept, controversial? A. It is difficult to be controversial when you have 32 cases of intentional suffocation documented by covert video surveillance. You cannot say they are controversial insults or abuses. They are factual.”
[31]There are further questions as to whether it was appropriate to invite Ms Salem to attend the interview and challenging whether the letter of instruction covered the search for MSBP. In their Skeleton Argument before Blake J the GMC built on these questions by noting (at [118]):
“It is clear that the [panel] were concerned that a paediatrician had taken on what was in effect a murder investigation, which also included a paediatrician carrying out a forensic interview with an adult “suspect”
. As they stated in their Determination on Serious Professional Misconduct and Sanction: ‘The possibility of M1 being the victim of murder had not been raised until you became involved. At the inquest the coroner had recorded in his verdict that he had considered suicide and accident but in the event he returned an open verdict. It is apparent that no evidence was presented at the inquest to suggest that murder was a possibility. Despite that verdict you formed the belief that the circumstances of M1’s death needed to be investigated by you.”[32]That is not the entirety of the panel’s conclusions on this topic. The determination went on:
“The panel is extremely concerned by these facts. You are a registered medical practitioner and in that capacity you were instructed by … County Council to write an expert report for the court in care proceedings based on the papers that had been provided to you. The letter of instruction made it clear that it was important that the parties had confidence in your independent status.”
[33]The submission made by the GMC impressed Blake J. While making it clear that there was no charge of misconduct in respect of his early approach in February, the judge went beyond the charges in a number of ways. First, he found himself “struck by the alacrity and weight given to the hypothesis that M1 died as a result of the physical harm inflicted upon him by his mother whether or not she suffered from FII of MSBP at the time” ([53]). He noted that Dr Southall had been wrong in his preliminary assessment that hanging was an unusual form of self-harm adopted by a 10 year old and that his interest in the load-bearing capacity of curtain poles was outside his professional competence and his hypothesis “the sheerest speculation resulting from the earlier speculation” ([56]). While recognising that a paediatrician is not bound by previous conclusions of social workers, police, coroners or anybody else, his conclusions can only be based on matters “properly recorded in medical notes or substantiated by other evidence” ([57]). He went on to express it as “particularly surprising that Dr Southall should consider it appropriate to invite Ms Salem to sit in on the interview ([59]) before repeating that none of these matters formed the basis of any particular allegations in the charges but “were matters to which the panel could have had regard when considering the preamble to this interview” ([60]).[34]It is important to underline that the GMC had deliberately chosen to pursue a very much narrower allegation, specifically directed solely to whether Mrs M had been accused of drugging and then murdering M1 by hanging him. The charge was presented as a simple issue of fact which turned solely on the credibility of those who participated in the interview and which could be tested by what was recorded or said at or following it. As a result, it did not require expert evidence and neither, it was argued by the GMC, was it necessary for the panel to provide any detailed reasoning. In my judgment, however, in whatever way this analysis was presented, to describe it as ‘preamble’ (which would simply have noted the areas that had to be covered and, perhaps, pressed on the risks of which Dr Southall had to be aware) is to ignore the significance of these conclusions. The ‘extreme concern’ of the panel to which the panel refers carries with it the implication that Dr Southall’s conduct in investigating the circumstances of M1’s death was improper and outside the terms of his instructions: the GMC’s submissions reinforce that approach and the observations of Blake J reflected it. If there was to be a challenge to this aspect of Dr Southall’s work, however, it required a relevant charge and a proper investigation, by expert evidence, of the professional remit of paediatricians concerned with allegations of child abuse including, for example, evidence as to the propriety of involving the social worker in the case as a witness to the interview. In the event, Dr Southall did not accept the criticisms and there was no evidence before the panel one way or the other that dealt with the legitimacy of his concerns or his approach.[35]That conclusion is not challenged by the approach adopted by Ms Carss-Frisk who when asked, in argument, to deal with the issue of what it was contended Dr Southall could do by way of investigation into the circumstances of M1, did not take the line that enquiry was unjustified but said that some degree of probing and discussion of scenario 3 (murder) would have been acceptable while re-iterating that the focus should have been on M2. She went on to say that the precise boundary of how far any discussion could go was not explored by expert evidence because it was common ground that if Dr Southall went over the very clear line and expressly alleged murder, this would constitute serious professional misconduct. In that regard, Dr Southall made clear throughout that in order to determine the risk to M2, it was essential to understand what had happened to M1.[36]I must emphasise that this judgment is not to be taken as endorsing the way in which Dr Southall went about investigating the issues that were put before him. Neither is it criticising his approach. Although it was common ground that it was serious professional misconduct to accuse Mrs M of drugging and then murdering M1 by hanging him, that is the limit of the agreement in this area and, given the narrow formulation of the charge and the total absence of expert evidence, it was inappropriate for the panel or the Judge to have gone further or sought to base or ground any judgment of the facts in issue upon such an assessment of the background.

The Challenge: Perversity

[37]Ms O’Rourke challenges the decision of the panel in a number of ways. Her primary argument is that a proper analysis of the evidence and application of the burden and standard of proof could only properly lead to the dismissal of these charges on the basis that the panel failed properly to appreciate (or, if they did, to act upon that appreciation) that Dr Southall accepted that Mrs M could very well, and understandably, have perceived that he was accusing her of murder although he had not and her perception did not mean that the panel could be sure that he had. Ms O’Rourke accepted that the effect of this submission was that the decision of the panel was perverse. It is thus necessary to examine the evidence in some detail.[38]Mrs M gave clear evidence in support of the complaint. She said:
“Professor Southall just turned to me and said, ‘I put it to you that you killed your son by injecting him, hanging him up, leaving him there to die and then ringing the ambulance’.”
She said that he had done so on three occasions in clear and unmistakeable terms and rejected the suggestion that he had not done so. To the proposition that she came away from that interview with a perception that she had been accused of murder she said: “He did accuse me of murder” and made clear that she understood the distinction. She said that she was upset and crying at the end of the interview but repeated that he had called her a murderer.[39]Ms O’Rourke points to areas of Mrs M’s evidence which were contradicted by other evidence. Mrs M had made a prior inconsistent statement in relation to whether she had been hysterical at the interview; she had said that she physically went straight to her solicitor (when, in fact, although she spoke by telephone to her solicitor, she did not see her until 29April) and she accepted the content of Ms Salem’s note as 100% accurate (while maintaining that it was not complete). Ms O’Rourke also said that, notwithstanding the evidence to which I have referred, Mrs M was unclear on the issue of perception as revealed by the exchange in cross examination:
“Q. But I, on his behalf, allow you this, that you did not like the questions that he was putting; you did not like the pointedness [sic] of the questions; and you have treated them as if he was accusing you, threatening you, hectoring you, and actually saying he did not believe you. A. That is right, yes. Q. There is a difference is there not? A. I do not think there is.”
[40]As for the evidence of Dr Corfield and the solicitor, Mrs Parry, far from supporting Mrs M, Ms O’Rourke argued that, when properly understood, they supported the case advanced by Dr Southall. Thus, Dr Corfield had seen Mrs M on 28April. Her contemporaneous note of the meeting included the words:
“She found [interview] offensive and upsetting. F. Salem also present which she didn’t like. Questions like ‘they didn’t do toxicology – quite possible you drugged him first’ felt accused of killing [M1]: it wasn’t about [M2] at all.”
Dealing with what she learnt from this interview about the nature of the questions that had been asked, she reported what she was told by Mrs M in terms that “they [i.e. Dr Southall and Ms Salem] seemed to imply that she might have killed him herself, that the questions were perhaps testing that hypothesis” although she made it clear that these were her (Dr Corfield’s) words and not those of Mrs M. She spoke of the “implication as she [Mrs M] saw it” and in answer to the direct question “At no stage did she say that Dr Southall had in fact accused her of murdering this child” she said “I would have to say that she did not say those words” and that if she had done so, she [Dr Corfield] would have been startled. For the sake of completeness, I add that to the panel she did say “I think her words would have been ‘he accused me of killing the boy’ and I would have written ‘she felt accused of killing him” but she later agreed that she could not be sure that she said that and, later, that if she had said in terms that Dr Southall had accused her of killing the child, that is something she would have discussed more widely. Finally, in re-examination, while repeating that she could not say for sure that Mrs M had used those words, she added the comment:
“I wrote down that she felt accused by him. I do believe that to be the case. By that I mean I think, if asked, she would say that is how it came across to her but I cannot remember her saying”
[41]Mrs Parry saw Mrs M on 29April. Her dictated attendance note records Mrs M’s complaint that Dr Southall:
“… was more or less cross examining her and accusing her of lying and that the pole could have broken with her weight and her son’s weight … He was telling her that it cannot be proven that she did not kill [M1]. … He accused her of killing [M1] alright [sic] saying that she killed him either by suffocation or drugged him and then he eventually pressurised her into saying how the belt was tied and he said that it was very cleverly done.”
In the handwritten notes prepared contemporaneously, Mrs Parry had written “if it can’t be proven” and, later, “if nobody can prove that [M1] did or didn’t kill himself through bullying”. When cross examined, she acknowledged that the use of the “if” represented a conditional option which was not reflected in her attendance note: she said that she wrote her note “at that time as best as I could”. She also spoke of Mrs M referring to an accusation in her telephone call on the day of the interview but there was no note of that and she had not mentioned it in her statement.[42]Dr Southall made it clear that the circumstances surrounding the death of M1 were central to the issue of whether M2 was at risk; he explained why he analysed the third scenario and his concerns about the features of the case. He acknowledged that it was difficult but made it clear that Mrs M did not make it difficult for him: she understood, he thought, what she was doing and why. He rejected the allegation that he had suggested that Mrs M had injected M1 saying that it was his belief that the ambulance men were responsible for that. He denied that Mrs M was in tears and denied that he accused her of ‘hanging him up and leaving him to die’ saying “That is not something I would ever say to anybody”. To the panel, he confirmed their understanding of his case that having broached the scenario of murder, Mrs M saw it as an accusation in this way:
“Yes, and I completely understand her view. I am not criticising her for that at all. It is just that she would have felt – felt I think is the word – but I did not accuse her and certainly the expression that was used, the one that was stated as what I accused her of, is just not on. I would not do that.”
[43]Ms Salem’s handwritten contemporaneous record was converted into over three pages of closely typed notes (which Mrs M had agreed as accurate albeit incomplete), dated 28 April. She identified the three scenarios but did not record the discussion of them. She recorded that Mrs M was adamant that M1 had committed suicide. She was prepared to talk about the belt “if it cleared her name” and “she felt that she wanted to prove her innocence”.[44]When she gave evidence, Ms Salem said that Dr Southall was approached because parental induced injury (PII) was “one of the hypotheses at the time”. She said that Dr Southall had approached the scenarios in a manner that was “very calm … very open and very clear”. There was no allegation of murder and no sarcasm. She would have remembered and would have been quite shocked if that had been said; she would have been very cross and would have spoken to her manager. It would have been unprofessional. Dr Southall was extremely straightforward and honest; she did not recall Mrs M being visibly or physically upset. It was acknowledged that she had participated in the preparation of an action plan to investigate some of the facts discussed. Finally, I ought to add that her evidence was challenged not only because of her failure to record the discussion of the scenarios but also because of what was described as her ready ability to remember the mood of the interview and to confirm that no accusation had been made but her inability to remember other details.[45]Finally, as to the burden and standard of proof, the legal adviser provided standard directions to the panel and further gave them a full direction as to the effect of delay. In addition, the panel’s decision specifically identifies that they had borne in mind both that the burden of proof rested on the complainant and that the panel had to be satisfied so as to be sure that each of the allegations had been proved, considering each head and sub head of charge separately.[46]Ms O’Rourke cannot and does not suggest that there was no evidence that Dr Southall accused Mrs M of murder but she does argue that the weight of the evidence was such that it was quite impossible for the panel to be sure that Dr Southall made the specific accusation which formed the narrow basis of the charges. Although grounding that submission on an application of the burden and standard of proof, when pressed, she accepted that the effect of what she was saying was that the conclusion of the panel was perverse. Thus, she submitted that the inconsistencies in Mrs M’s account undermined her credibility, that the true effect of the evidence of Dr Corfield and the language which she used to express herself was supportive of the case that Mrs M felt accused of murder without having been specifically accused of murder and that Mrs Parry’s handwritten note of the complaint made to her was, at best, equivocal. Against that was the clear evidence of Dr Southall and Ms Salem. It is for that reason that the standard of proof could never be met.[47]How is this submission to be approached? First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd’s Rep 455 at 458). Further, the court should only reverse a finding on the facts if it “can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread” (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):
“In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses’ credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. .”
[48]In my judgment, it is far from reasonably certain that the evidence was misread to such extent as itself justifies interfering with the assessment of the panel on issues of credibility and I am not in a position to say that a review of the transcript is more likely to produce a correct answer. The panel heard Mrs M (albeit over a television link) and were in a position to assess her evidence; they similarly heard all the other witnesses. Although I do not for one moment minimise the difficulty in seeking to assess what happened at an interview some 8 years prior to the hearing where the issue between the parties is so narrowly defined (namely the difference between making of an accusation of murder and asking questions which could create the perception of being accused of murder), provided that it can be shown that the issue has been addressed correctly, I would not be prepared to interfere with the findings of the panel. To translate the issue into slightly different terms, there was undoubtedly a case to answer and it was for the panel, as fact finders, to make up their minds about where the truth lay and, provided no other error is apparent, it is no part of the function of this court to interfere: given the overall thrust of her evidence, the ‘concession’ by Mrs M in cross examination to which I refer at paragraph 39 above need have been no more than the misunderstanding of what was a very complex assertion. I do not accept that the panel misunderstood the burden or standard of proof and reject the submission that its findings were perverse.

Reasons

[49]The caveat which I have expressed in relation to the assessment of the evidence (“provided that it can be shown that the issue has been addressed correctly” and “provided no other error is apparent”) leads to the second argument advanced by Ms O’Rourke challenging the reasons provided by the panel. She argued that Dr Southall was entitled to know why he had lost, that is to say, why he and Ms Salem had been disbelieved. She submitted that in the context of this case, where Mrs M gave evidence over about two thirds of a day, Dr Corfield and Mrs Parry for about an hour each, Dr Southall in the order of two days on this issue and Ms Salem for no less than 2½ days, it was essential that proper reasons be provided. As it was, although the panel had found facts proved and expressed themselves of the view that Mrs M was a clear, honest and credible witness, not a single word was addressed to Dr Southall’s evidence and the only comment made about Ms Salem was that “in many [unstated] respects the panel did not find her evidence to be wholly convincing”: that was simply an insufficient basis to justify an adverse finding that could lead to Dr Southall’s erasure.[50]This submission requires an analysis of the obligations placed upon the panel in connection with their decision. It is appropriate to start with Selvanathan v General Medical Council [2000] 59 BMRL 96 which concerned a complaint that a general practitioner provided information that was(i) false and(ii) misleading in answer to a complaint that he had not made a home visit to a patient when requested to do so. The purely factual allegations were not in dispute: the doctor accepted that he had handled the complaint clumsily and not in accordance with acceptable practice. He denied dishonesty, giving evidence himself and calling two character witnesses. As to the need to provide reasons, Lord Hope said (at 103):
“Their Lordships consider that, in practice, reasons should now always be given by the Professional Conduct Committee for their determination … whether or not they find the practitioner to have been guilty of serious professional misconduct and their decision on the question of penalty. Fairness requires this to be done, so that the losing party can decide in an informed fashion whether or not to accept the decision or to appeal against it…”
As to the adequacy of reasons for the adverse finding on the issue of deliberate falsity i.e. dishonesty, Lord Hope went on (at 104):
“It was plain … from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the committee’s assessment of the appellant’s credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding.”
[51]In Gupta (supra), the Privy Council returned to this issue. Here, again, the question was straightforward and concerned whether the appellant had allowed or failed to prevent her husband (who had been erased from the medical register) from practising in her surgery. Having found certain of the factual allegations proved, when determining sanction, the chairman said to the doctor:
“Your evidence to this committee was inconsistent and by reason of our determination untruthful in many respects”
. It was suggested that, even in cases concerning credibility or reliability, the committee could and should have given reasons. The Board rejected the view that there was a general duty to give reasons suggesting that it would require performance of “an essentially sterile exercise”; when its decision depended “essentially” on resolving questions of credibility of the witnesses, the decision on the heads of charge were sufficient. Lord Rodger went on ([14] page 1699C):
“[The Board] have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. None the less, while bearing in mind the potential pitfalls highlighted by Lord Mustill [in Wallace v The Queen, The Times, 31 December 1996], the Committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the Committee to give reasons for their decision even on matters of fact. Nothing in Selvanathan is inconsistent with that approach… In the present case [counsel for the GMC] accepted that in certain circumstances – which he said would be exceptional – there could indeed be a duty on the committee to give reasons for its decision on matters of fact… He urged the Board to provide guidance to the committee on the matter. Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live.”
[52]Gupta was reviewed by this court in Phipps v The General Medical Council [2006] EWCA Civ 397 which refused permission for a second appeal but included a detailed analysis of this area of law. Drawing on English v Emery Reimbold & Strick [2002] 1 WLR 2409 at 2417 (“justice will not be done if it is not apparent to the parties why one has won and the other has lost”), Wall LJ cited [14] of Gupta and observed (at [73]) that:
“although counsel for the GMC in Gupta plainly submitted that it would only be in exceptional circumstances that there could be a duty on the PCC to give reasons for its decision on matters of fact, the common law does not stand still, particularly in the developing area of the need for judges and tribunals to give reasons for their decisions. Thus, it seems to me that what was exceptional in 2001 may well have become commonplace in 2006.”
[53]Arden LJ expressed concern that counsel then appearing for the GMC did not develop submissions on this point and went on (at [103]):
“We do not know what the practical implications are. No-one would want to cause unnecessary delays in the delivery of decisions by the GMC. That would not be in the public interest. By contrast with this court, the Privy Council had enormous experience in dealing with these appeals and we should not lightly cast aside the benefit of that heritage. Indeed, I would say that in this particular field the judge was right to treat the decision in Gupta as binding on him unless it could not stand with a decision of this court or of the House of Lords.”
[54]Sir Mark Potter P endorsed the observations of Wall LJ concerning the inter-relation of [14] of Gupta and the principles in English v Emery Reimbold and went on (at [106]):
“The latter case made clear that the so-called "duty to give reasons", is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta, namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given "even on matters of fact": see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious.”
[55]For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter.[56]When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield’s note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M’s perception alone. Ms Salem’s note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel.[57]Perhaps because of the nature of the case, the panel did, of course, provide a few sentences of reasons but, in my judgment, they were simply inadequate and did not start to do justice to the case. On the specific findings of fact, although entitled to conclude that Mrs M was a clear, honest and credible witness, they do not specifically deal with the suggestion that she perceived herself to have been accused and so represented herself as having been accused which, when upset (as she described) would be entirely understandable and could itself explain why (if it be the case) that she so reported the interview over the days that followed. Let me make it clear that I am not making such a finding but merely concluding that Dr Southall was entitled to know why that possibility was discounted.[58]In relation to Dr Corfield, said to support Mrs M because of the comment “they didn’t do toxicology quite possibly you drugged him first”, the panel totally ignored the thrust of her evidence, recounted above, which was entirely supportive of the perception theory and did not deal with how that evidence impacted on the words she wrote or, in relation to her and Mrs Parry (whose evidence also included at least one conditional phrase), how Mrs M’s perception might have been reflected in what she said in the days that followed. As for Dr Southall’s report, the categorical denial would be no less categorical if Mrs M perceived herself as being accused as if she was accused.[59]Further, once providing some reasons, in my judgment, the panel did have to say something about Dr Southall who gave evidence on this topic for some days. If (as must have been the case) they disbelieved him, in the context of this case and his defence, he was entitled to know why even if only by reference to his demeanour, his attitude or his approach to specific questions. In relation to Ms Salem, the position was worse: to say that the panel “did not find her evidence to be wholly convincing” is not good enough. If she did not make a note of the specific challenge of murder (which she said she would have done), it must have been the panel’s view that she decided, at the time of the interview, that she would not do so and so have entered into an implicit agreement with Dr Southall to cover up an overly oppressive interview. That is nothing to do with not being wholly convincing: it is about honesty and integrity and if the panel were impugning her in these regards, it should have said so.[60]Finally, I express concern about the way in which the panel approached their task by reference in the sanction remarks to their extreme concern that Dr Southall formed the belief that the circumstances of M1’s death needed to be investigated by him. It is entirely legitimate to conclude that the panel there demonstrated that the approach to the interview had concerned them and it is not fanciful to suggest that it may have informed their approach to the factual dispute. If that is correct, their approach was not one based on evidence: it had not been the subject of expert evidence or specific charge and, in my judgment, was not one upon which they were entitled to form a view. I do not criticise the panel for that: it is how the matter was put in cross examination and doubtless in the submissions; it is certainly reflected in the submissions to Blake J, in his judgment and in the GMC’s skeleton argument for this court.[61]In that regard, when Blake J said that the panel were entitled to have regard to the extent to which Ms Salem could be said to be independent of Dr Southall, he also fell into error. First, there was simply no evidence to justify the conclusion that it was inappropriate for the social worker in the case to be present when Dr Southall interviewed Ms M: that itself required expert evidence of appropriate practice. Secondly, it is unclear how it is said that this was a “matter to which the panel could have had regard”; if it be to suggest that it permitted the panel to reject her evidence as untruthful, again in the absence of evidence condemning the practice, I respectfully disagree. To that extent, also, this determination is open to criticism.[62]In his judgment, Blake J considered that the panel’s conclusions were sufficiently explained both by the reasons it gave “and the detailed scrutiny of the transcript that the court has been invited to undertake”. That comment echoes a reference in Gupta v General Medical Council (supra) to the decision of the European Commission of Human Rights in Wickramsinghe v United Kingdom [1998] EHRLR 338 to the fact that the practitioner can study a transcript of the hearing, including not only the evidence but the submissions on the evidence by the respective parties further to understand which witnesses the panel accepted and why. It is unnecessary for the purposes of this judgment to decide how far such an exercise can go although, without the panel identifying which arguments in a complex case it accepted, however briefly that exercise is undertaken, it does not appear to me that an assumption can be made that all the submissions advanced by one side found favour with the panel simply because it concluded in favour of that party. The difference between this case and that of a criminal trial is that the judge’s summing up is an impartial analysis of fact and argument for both sides; submissions by the parties are not.[63]In summary, I conclude that, although superficially straightforward, this case was exceptional within the language of Gupta and required the panel to provide reasons. Contrary to the view expressed by Blake J, I do not consider the reasons which it provided were sufficient to explain why the panel rejected the defence that Mrs M might have perceived that she was accused of murder without her having been so accused. Although an argument could have been mounted that the separate charge dealing with the manner in which the interview was conducted (heads 17 and 18) could permit of a different conclusion even if heads 5 and 6 were not proved, no such submission was made. The only reason given in relation to those heads of charge is as to 17a (questioning Mrs M in an accusatorial and intimidating manner) which was that the panel found the report of 20 May to be significant in that it was supportive of Mrs M’s case. Nothing either in that observation, or any other aspect of the panel’s conclusions identifies conduct other than that comprehended by heads 5(b) and 6 which fell foul of this charge. The reasoning suffers the same flaw in relation to these charges as to the others.

Other Complaints

[64]Although not specifically challenging the other adverse findings, Ms O’Rourke made a number of other complaints surrounding the hearing albeit these were not advanced orally as free-standing grounds of appeal: I must deal with two. The first concerned the passage of time. A complaint was first made to the GMC in March 2002 (itself nearly four years after the interview), followed four months later by a sworn statement. The GMC then pursued the complaint made by Mr Clark and did not obtain disclosure of the family proceedings until April 2005 when this complaint was linked with the other issues which came before the panel. Charges were served and then amended in October 2005 and a hearing then fixed from 13 November 2006 to 1 December 2006. When that proved to be insufficient, the hearing was adjourned for a further five weeks to 7 November 2007 (which was apparently the first date when the panel and defence counsel were available).[65]No complaint was made about the delay either to the panel or to Blake J: given that defence counsel’s availability was at least in part responsible, that is not surprising. In the circumstances, I would not be prepared to entertain any challenge in consequence. Having said that, however, I find the progress of this professional charge to be completely unsatisfactory and unfair to everyone: to Mrs M, to Dr Southall and to the panel. Without evidence, it would be unfair to criticise the failure to bring it on for hearing with or at the same time as the complaint made by Mr Clark or the further time taken thereafter, but I feel less inhibited about the delay in the hearing itself. 15 days were initially set aside: including a lengthy panel retirement (which presumably had to be factored into the original time estimate), the case took a further 20 days in addition to the original 15 days. We cannot say whether this demonstrates a lack of attention to the necessary time required for this hearing by reference to a timetable, a failure to keep to such a timetable, or whether it arises for some other reason. Whatever the background, a delay of a year while any hearing is part-heard is utterly unacceptable and should not be permitted to happen again.[66]The second point concerned the composition of the panel which, initially, comprised two medical practitioners and three lay panel members. For reasons which are unclear, by the resumed hearing in 2007, only one of the medical practitioners (an orthopaedic surgeon) remained: Ms O’Rourke suggested that this limited and called into question the expertise that the panel brought to the decision which, as a result, required this court to pay less deference to its conclusions. As Ms Carss-Frisk identified, however, the General Medical Council (Constitution of Panels and Investigation Committee) Rules Order of Council 2004 (SI 2004 No 2611) requires only a panel of three, consisting of a chairman, medical panellist and lay panellist (Rule 6). There is no rule that there should be a medical panellist whose speciality matches the practitioner. Indeed, in Dzikowski v General Medical Council [2006] EWHC 2468 (Admin), Hodge J (at [24-5]) rejected a complaint made by the appellant doctor that the hearing was unfair because the panel hearing his case were not specialists in the field of addiction; in R(Biswas) v General Medical Council [2007] EWHC 1644 (Admin), Gibbs J took the same view.[67]Far from it being appropriate to have an expert from the same field, I consider the converse to be the case: as Ms Carss-Frisk put it, any issues requiring particular specialist knowledge should be dealt with through the calling of expert evidence; neither the GMC nor the doctor would be in a position to challenge the opinion of a member of the panel and, if a professional in the same field, the risk would be that a decision would be made on the basis of an expert view that had not been the subject of evidence or argument.

Professional Concerns

[68]When the application for permission to appeal was renewed before Mummery and Moore-Bick LJJ, Ms O’Rourke argued that there were compelling reasons to justify a second appeal based upon the extensive professional concern that had been expressed, which reflected the ambiguity of the position of paediatricians in the field of child protection explained in [3] above. The court then made the point that there was no evidence of that concern and, in order to make good the submission, statements have now been served from a number of leading paediatricians in the field along with articles from medical and legal journals. Among other matters, these deal with the impact of the decision on the profession and the problem facing doctors if the word of an independent social worker and a doctor is to be rejected in circumstances such as these. In response, the GMC have challenged the suggestions of adverse impact on recruitment and have provided copies of publications which make it clear how these difficult interviews should be approached; save for an American textbook, this guidance post-dates the facts in this case. Ms Carss-Frisk also made the point that in none of this material has anybody suggested that it is not entirely common ground that making an allegation of murder to a mother in the terms alleged would constitute serious professional misconduct.[69]It is no part of our task to enter into issues of professional practice or the need for guidance and, for my part, I would not do so. Child protection issues and the way in which such matters are handled remain a matter of enormous public concern and I have no doubt that paediatricians will recognise the vital importance to be attached to an approach that is focussed but sensitive. In that regard, it is clear that considerable thought has been given to the appropriate guidance which I hope will go a considerable distance to assuage remaining concern. If any remains, it requires to be addressed by the relevant bodies and not, in the first instance, by this court.[70]In relation to interviews, however, I add this. The days when a police officer corroborated by one or more other police officers was inevitably believed in relation to interviews (recorded in the officer’s notebook after the event) have long since passed. Prior to the Police and Criminal Evidence Act 1984, concern was expressed about the adverse impact of tape recording police interviews. In fact, taped interviews have removed all challenge and have assisted the administration of justice enormously. When asked why such steps were not taken in relation to those interviews in this field which are the most sensitive (in which category, the interview of Mrs M would most certainly qualify), the court was told that it was a matter of expense. Small digital tape recorders are not expensive and interviews can be stored electronically and transcribed only if some issue later arises: such a step would provide protection for the paediatrician and any other professional involved and also protection for the person being interviewed. Although it is not a matter for me, as with taped police interviews, I perceive only advantage to all and no disadvantage to anyone.

Conclusion

[71]For want of adequate reasons, I would allow this appeal although I must make it clear that this conclusion is not a condemnation of Mrs M or a vindication for Dr Southall and should not be seen as either. On any showing, the panel will have to consider what penalties should be imposed in relation to the other proved charges; as for the charges relating to Mrs M, I would invite the parties to make submissions as to the appropriate order.

Lord Justice Dyson :

[72]I agree.

Lord Justice Waller :

[73]I also agree.

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