Southall v General Medical Council

In professional disciplinary proceedings, a tribunal’s findings on credibility will ordinarily stand unless they are plainly wrong. However, where a factual dispute is unusually complex and turns on a material alternative explanation, fairness requires reasons sufficient to show why that explanation was rejected.

A tribunal must not allow an uncharged and unevidenced view of a practitioner’s wider professional conduct to influence its resolution of the charged factual allegations. Specialist issues should be addressed by evidence, not assumed expertise.

Dr David Southall appealed against Blake J’s dismissal of his appeal from a Fitness to Practise Panel decision. The panel found that he had accused a bereaved mother of drugging and murdering her son, and that his questioning was accusatorial and intimidating. It directed erasure from the medical register.

The High Court dismissed the appeal in [2009] EWHC 1155 (Admin). Before the Court of Appeal, Dr Southall challenged the findings as perverse and contended that the panel had given inadequate reasons for rejecting his account and that of the social worker present at the interview. The central issue was whether the panel’s reasons adequately addressed the defence that the mother perceived an accusation without an express accusation having been made.

1. Appeal allowed. The Court upheld the rejection of the perversity challenge. The panel had heard the witnesses and was entitled to assess their credibility. Its conclusion was not shown to be plainly wrong or founded on a misunderstanding of the burden or criminal standard of proof.

2. The appeal nevertheless succeeded because this was an exceptional factual case requiring reasons. A bare finding that the complainant was credible would often suffice in a straightforward credibility dispute. Here, however, the defence accepted that the complainant could understandably have perceived an accusation of murder without one having been made. The contemporaneous material, including the social worker’s evidence and the evidence of the psychiatrist and solicitor, required the panel to explain why it rejected that alternative.

3. The reasons did not address the defence case or adequately explain the rejection of Dr Southall’s evidence. They also failed to explain the treatment of the social worker’s evidence. Describing her evidence as not wholly convincing was insufficient where the implication was that she had failed to record, or had concealed, an express allegation of murder.

4. The panel and the judge were not entitled to treat an uncharged view that Dr Southall had improperly investigated the earlier death as relevant background against him. There was no expert evidence about the proper professional role of a paediatrician in that setting, nor any charge directed to that conduct. The court did not endorse or criticise his investigative approach.

5. The separate findings concerning the manner of the interview suffered the same deficiency because they were not reasoned by reference to conduct distinct from the alleged accusation. The court invited submissions on the appropriate order. The unchallenged findings remained relevant to penalty.

The court also rejected the ancillary suggestion that the panel required a member with the doctor’s specialty. Under the General Medical Council (Constitution of Panels and Investigation Committee) Rules Order of Council 2004, specialist questions should be resolved through evidence capable of challenge.

• Court of Appeal (Civil Division): Allowed Dr Southall’s second appeal because the panel’s reasons were inadequate for an exceptional factual dispute: [2010] EWCA Civ 407.

• High Court, Administrative Court: Blake J dismissed the appeal from the Fitness to Practise Panel: [2009] EWHC 1155 (Admin).

• Fitness to Practise Panel of the General Medical Council: Found serious professional misconduct and directed erasure under section 36 of the Medical Act 1983.