ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HON MR JUSTICE BLAKE
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal (Civil Division)
THE RT. HON. LORD JUSTICE DYSON
THE RT. HON. LORD JUSTICE LEVESON
| Dr. DAVID SOUTHALL
|- and -
|THE GENERAL MEDICAL COUNCIL
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Monica Carss-Frisk Q.C. and Richard Tyson (instructed by Field Fisher Waterhouse, Manchester) for the Respondent
Hearing dates : 22-23 March 2010
Crown Copyright ©
Lord Justice Leveson :
"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 "
"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
"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
(c) were an abuse of your professional position".
"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."
"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".
"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."
"...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."
"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
"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."
"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."
"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."
The Challenge: Perversity
"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.
"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."
"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"
" 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.
"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."
"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. ."
"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."
"[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."
"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."
"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."
"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."
Lord Justice Dyson :
Lord Justice Waller :