Three doctors and a GMC prosecutionBMJ 2008; 337 doi: https://doi.org/10.1136/bmj.a907 (Published 24 July 2008) Cite this as: BMJ 2008;337:a907
On 8 May this year, 15 years after the conclusion of what has become one of the most exhaustively scrutinised trials in the history of paediatric research,1 and 11 years after the General Medical Council first received complaints about it, a fitness to practise panel finally sat to hear charges against three of the doctors involved. Almost two months later, on 4 July, the case was thrown out by the panel, which accepted half-time submissions by the doctors’ lawyers that they had no case to answer.
The cloud that since 1997 had hung over the heads of David Southall, Martin Samuels, and Andrew Spencer and, by association, everyone at the two centres that had participated in the trial of continuous negative extrathoracic pressure (CNEP) as a treatment for neonatal respiratory failure, had been lifted.
After a decade of investigation the hearing had begun with a delay. The counsel for the GMC and the complainants applied for a five day adjournment in the light of an expert’s report they had commissioned only 10 days earlier. The report, by Jane Hutton, professor in medical statistics at the University of Warwick, was at odds with the evidence of the prosecution’s main expert witness, on which the bulk of the charges had been based.1
In its determination the panel accepted the defence submission that Richard Nicholson, editor and owner of the Bulletin of Medical Ethics, was neither an expert nor independent.2 No reasonable panel, said the chairman, David Kyle, former chief crown prosecutor, “could safely rely on his opinion evidence, firstly because of considerable reservations whether he qualified as an expert due to the limited expertise he can demonstrate.” There were also “considerable reservations about his independence and objectivity”; he had “conducted himself as a supporter” of the complainants and, in articles in his own journal and in interviews with the media, had shown “a deep animosity towards Dr Southall.”2
The CNEP hearing had proceeded despite a series of earlier investigations by the police, NHS, and other bodies having found no fault with the research trial.3 4 5 For many paediatricians and others, it was the latest episode in what they saw as the GMC’s misguided pursuit of Dr Southall, a key target of a campaign against doctors working in child protection.6 7 8 9 10 11 12
In two previous cases against Dr Southall, the GMC had also been accused of relying on the evidence of an expert witness whose appropriateness to give such evidence was open to question.
In August 2004 a professional conduct committee found Dr Southall guilty of serious professional misconduct for having raised concerns for the safety of Sally Clark’s surviving child, in the care of its father while its mother was in prison, having been found guilty in 1999 of the murder of her two baby sons. Dr Southall was banned from child protection work for three years.13 The GMC hearing was later criticised for “a series of flaws and conflicts of interest that casts doubt on the GMC’s disciplinary procedures.”14 15 An article published in Pediatrics, signed by 53 paediatricians, accused the GMC of harming child protection in the UK and failing “to recognise the conflict of interest that could have affected the views of its only expert witness,” Tim David, a professor at Manchester University.7
Despite the concerns that were raised about the reliance on Professor David as an expert witness at the Clark hearing, the GMC relied on him again in its second case against Dr Southall. On 4 December 2007, a GMC panel upheld a complaint of serious professional misconduct against Dr Southall based on the uncorroborated evidence of a woman who claimed that in a 1998 child protection interview Dr Southall had accused her of murdering her child, notwithstanding evidence to the contrary from a senior social worker who had been present at the interview.16 Dr Southall was removed from the register. He is appealing against the decision.17 Both the verdict and the punishment were greeted with dismay.18 19 20 21 The message the GMC had sent, wrote one doctor, was “loud and clear: challenge parents at your peril, you will have no conceivable defence.”9
By the time the second case against Dr Southall had come to a hearing, concerns about the GMC’s proposed reliance once again on Professor David as an expert witness had been raised directly with Graeme Catto, president of the GMC. On 1 September 2006, two months before the hearing started, Wendy Savage, a gynaecologist and obstetrician who had retired from the GMC in 2005 after 16 years of service, wrote to Sir Graeme saying that she “found it hard to believe” that Professor David was involved with the case.4 Dr Savage noted that she had previously raised concerns with Sir Graeme about the use of Professor David as an expert witness in the Clark case, whereupon she had been informed that the GMC “had taken legal advice to the effect that there was no conflict.”
She described the GMC’s decision to rely on Professor David in the Clark case as one “I still find hard to accept . . . I think that as he had prior to the case been antagonistic towards David Southall’s work that he is not the right person to be doing this. Did you have difficulty in getting another UK paediatrician to do this review?” Sir Graeme replied to Dr Savage, but merely to indicate that he could not comment on the case because it was “still live.”
Clues to the unsuitability of Dr Nicholson as an expert witness against Dr Southall in the CNEP case had been in the public domain for years. Well before the hearing, Dr Nicholson had aligned himself with campaigners against the trial. For the past decade, Carl and Deborah Henshall have made many serious and unsubstantiated allegations against the researchers in the trial, accusing them in the media and in complaints to members of parliament, the police, and the GMC of scientific fraud, monetary fraud, forgery of consent forms, actual bodily harm, and even murder—a litany of charges scrutinised and demolished at the hearing during thecross examination of Mrs Henshall.6 22
In a letter to the BMJ published in September 1998, Dr Nicholson referred to the Henshalls, albeit without naming them, and a dossier they had assembled which “consists of nearly 1000 pages of evidence supporting their complaint that one of their children died, and another was left severely brain damaged, as a result of being used without their consent in a research project.”23 Under cross examination at the hearing almost a decade later, Dr Nicholson admitted that he had not studied the contents of this dossier before submitting his letter for publication. Dr Southall’s counsel, Mary O’Rourke, asked Dr Nicholson what had “entitled you or caused you to say in a reputable journal going out to most of the medical profession that that dossier contained evidence which supported those two contentions?” Dr Nicholson replied: “I suspect I took their word for it.”
The GMC has repeatedly rejected claims that it has treated Dr Southall and others unfairly, both in the way it has handled the campaign against them and in the way it has appointed expert witnesses.24 In February 2008, Sir Graeme replied robustly to an open letter in the BMJ critical of the GMC’s performance in the first two Southall cases by accusing paediatricians of “fuelling a perception that the GMC is somehow bent on unfairly persecuting paediatricians involved in child protection work.”10 24
GMC handling of complaints
The true extent of the campaign against paediatricians and how the GMC has gone about dealing with it has remained shrouded in mystery. When contacted, the GMC declined to disclose how many complaints it had received (personal communication).
However, an internal GMC list of ongoing cases dated 1 February 2006 records no fewer than 11 complaints against Dr Southall, from 1999 to 2005, made by a single complainant whose children had never been treated by Dr Southall. Among other documents obtained under the Freedom of Information Act is a second internal GMC email, dated 14 March 2003, whichsuggests that the same person also made complaints about several other doctors. Furthermore, an email distributed internally by a caseworker at the GMC on 13 September 2005 recorded: “I have about 12 or so boxes of papers on Professor Southall, but there are many more in storage . . . FPD [Fitness to Practise Directorate] lists around 40 different cases in all.”
Concern has been expressed about the relationship between certain GMC officers and complainants. In 2002, after Harvey Marcovitch, the editor of the Archives of Disease in Childhood, and 17 other doctors had been reported to the GMC “by the same small group of people,” they wrote a letter to the BMJ demanding that the GMC “recognise and deal with vexatious complainants fast.” The letter recorded that one of the 18 doctors had applied under the Freedom of Information Act to see material about him held by the GMC “and was disturbed to find that members of the council’s staff and a regular complainant were on first name terms.”25
Another internal GMC email sent to Finlay Scott, chief executive of the GMC, and others on 28 November 2003, offers an insight into how the GMC had responded to the morass of complaints against Dr Southall:
“You will recall that ‘Southall’ is the horribly complicated mess which the original caseworker mishandled, and where we made a commitment to look at the entire case again,” the email’s author wrote. A key factor in the GMC’s slow progress was said to be “the constant stream of letters, emails, telephone calls and new allegations that have continually come out of the woodwork.”
The extent to which this original caseworker mishandled the complaints against Dr Southall has now become clear. The caseworker had responsibility for the “numerous complaints” about Dr Southall and the “mountain of correspondence” arising out of them from the end of 1999 until he left the GMC in April 2002. His replacement wrote to colleagues on 21 May 2002: “I am concerned the case is handled properly from here on in, “ she said.“Unfortunately we appear to have got off to a very bad start and the purpose of writing the attached document is … to offer a suggestion as to how we might reclaim our position/reputation.”
On 31 January 2001, the GMC screeners who would eventually recommend that the Clark complaint be referred to a preliminary proceedings committee received aless than objectivebriefing email from the original caseworker.“Stephen Clark’s complaint,” he wrote, “reflects the maverick and almost God like belief Professor Southall has of his own infallibility.” The same caseworker drafted the charges against Dr Southall in the Clark case, which the preliminary proceedings committee decided to refer to a full GMC hearing, as he had recommended.
Significantly, the decision to refer the Clark case was made not in isolation but after consideration at the same time of two other sets of child protection allegations against Dr Southall. The committee considered that “a pattern of inappropriate behaviour was revealed by the allegations in these three cases in that Professor Southall allowed his belief in his own expertise to cloud his professional judgment.” The committee referred all three cases to full hearings.
However, one of the three cases that served to inform the committee’s view was that of a woman who claimed that Dr Southall had accused her during a child protection interview of murdering her own child. Although it noted that there was the “possibility” of further evidence from a guardian ad litem who had been present, the committee referred the case.
It was not until a year later, however, that the GMC interviewed the guardian, who provided evidencecontradicting the complainant’s allegations.
There had, in other words, been no “pattern of inappropriate behaviour.” Nevertheless, the Clark case, which had proceeded to a hearing in 2004 on the basis that there had been, had been allowed to continue.
Selection of experts
The minutes of a meeting held at the GMC on 21 June 2002 show how the council decided to go about reclaiming its reputation after the caseworker’s departure: “All problematic Southall related cases” were being reviewed and plans were afoot to access the caseworker’s computer hard drive and email account. Less than a week after that meeting Paul Philip, director of fitness to practise at the GMC, wrote to Dr Southall explaining that a review of child protection cases already closed by the GMC had identified “a number of errors in the way some of these cases have been handled . . . We have therefore decided to re-open those cases where maladministration has been identified.”
An exchange of correspondence between the chief medical officer, Liam Donaldson, and the GMC in 2000 that has recently come to light raises further questions about the organisation’s selection of expert witnesses. In October 2000, the month after the publication of a damning critique of the Griffiths inquiry into the conduct of the trial of continuous negative extrathoracic pressure,26 Liam Donaldson wrote “in strict confidence” to Finlay Scott, chief executive of the GMC: “Emotions are running high in support of Professor Southall in the child health world . . . Presumably, the GMC has thought about objectivity in the choice of experts and whether to go overseas for opinions.”
The reply, sent on 9 October in the absence of Mr Scott by Isabel Nisbet, director of fitness to practise, showed the GMC was not unreceptive to such external interference. “We are aware of the strength of feeling about this case in the child health world and of the exchanges in the BMJ,” she wrote. The GMC’s lawyers, she said, were about to approach Kate Costeloe, professor of paediatrics at the Homerton Hospital. However, she added, “if you know of any reason why we should not use Prof Costello [sic], or if you have any other suggestions of objective sources of expert advice in this country, please do not hesitate to let us know privately.”
A spokesman for the Department of Health declined to say whether the chief medical officer responded to this invitation. What is certain, however, is that Professor Costeloe was not the expert finally chosen—it was Dr Nicholson; nor was she ever approached.
In the wake of the collapse of the CNEP hearing, it remains unclear why the GMC proceeded with its case against the three doctors. As long ago as February 1998, anemail from a caseworker to medical and lay screenersdescribed the allegations as “long on speculation . . . but short on evidence,” but noted also that the key complainants were “aggressively mobilising the media, including Channel 4 News, and MPs.”
The writer added: “I am not optimistic about the prospects of proving anything concrete against individual doctors. However . . . in view of the serious nature of the allegations, we should respond to the campaign being orchestrated . . . by asking FFW [Field Fisher Waterhouse, GMC solicitors] to undertake an investigation.”
In 2002 and 2004, preliminary proceedings committees of the GMC twice considered and rejected Mr and Mrs Henshall’s complaints. The Henshalls appealed and, in December 2005, the Court of Appeal ordered that their case be “remitted to a reconstituted PPC for reconsideration.”27
A committee was duly convened in 2007 to consider their complaint again. This time it chose to refer the case to a full hearing. Nevertheless, it was not the case, as Mr Scott seemed to imply in an article in the Observer published shortly before the hearing began, that the GMC had been left with no choice.28
In the end, a prosecution of three doctors which had dragged out over a decade collapsed because it had no sound evidence to support it. In the words of the panel, summarising the submission of Martin Forde, QC for Dr Spencer, the GMC had presented evidence that was “inherently weak, inconsistent, unreliable and implausible.”
Edmund Hey, a paediatrician who in 2000 coauthored a paper in defence of the research trial, commissioned by the Medical Defence Union,26 says that Professor Hutton’s last minute report had given “the science behind this paper and the handling of the statistics a completely clean bill of health.
“If the GMC had obtained such an opinion 11 years ago it would have saved both sides in this long drawn-out saga a vast sum of money, to say nothing of the quite unnecessary damage that the scandalous mishandling of this case has inflicted on the medical reputation of three senior paediatricians.”
Furthermore, the GMC’s mishandling of the affair has, according to Dr Hey, had other costs: “to the families of the professionals affected, to the faith that the local community has felt able to place in the care of children in Stoke, to neonatal research across all the UK for at least six years, and to the faith that doctors, and paediatricians in particular, now have as to the competence with which the GMC currently handles allegations of misconduct.”
A spokesperson for the GMC said: “We do not comment on individual cases, in particular those which have recently concluded and which are still subject to appeal. This case is no exception.”
Cite this as: BMJ 2008;337:a907
Competing interests: None declared.