Southall v General Medical Council

Professional disciplinary decisions must make clear why the practitioner has lost. In straightforward factual disputes, findings on specified charges may suffice where the reasons are readily apparent. An exceptional case involving complex evidence requires reasons addressing the salient issues, including a material alternative explanation and the rejection of important defence witnesses. Appellate restraint towards credibility findings does not cure inadequate reasons.

Where a narrowly framed charge concerns a specific factual allegation, wider criticism of professional methods cannot properly inform the finding without a relevant charge and appropriate expert evidence on professional practice.

Dr Southall, a consultant paediatrician, was instructed by a local authority to provide an expert report in care proceedings concerning the surviving son of Mrs M, whose elder son had died by hanging. During an interview attended by Ms Salem, the social worker involved in the case, he explored whether the elder child might have been murdered. Mrs M alleged that he expressly accused her of drugging and murdering the child. Dr Southall denied making that accusation, while accepting that she might have perceived his questions in that way. Ms Salem supported his account.

The General Medical Council’s Fitness to Practice Panel accepted Mrs M’s evidence, found serious professional misconduct and directed erasure from the medical register. Blake J dismissed the practitioner’s appeal in [2009] EWHC 1155 (Admin). The Court of Appeal granted permission for a second appeal concerning the disputed interview findings; findings concerning a letter about another child and separate case files were no longer challenged. The central issues were whether the interview findings were perverse, whether the panel gave adequate reasons and whether criticism of the practitioner’s wider investigative approach had improperly influenced its assessment.

1. The appeal would be allowed for want of adequate reasons. That conclusion neither condemned Mrs M nor vindicated Dr Southall. It was common ground that an express accusation in the terms charged would constitute serious professional misconduct.

2. The perversity challenge failed. Appellate courts should be slow to disturb primary factual findings founded on assessments of credibility, recognising the tribunal’s advantage in hearing witnesses. Applying the approach in Libman v General Medical Council and Gupta v General Medical Council, the court could not conclude with reasonable certainty that the panel had misread the evidence. There was a case to answer, and the panel had understood the burden and criminal standard of proof.

3. A tribunal must make clear why the losing party has lost. Reasons may be express or readily implicit, and straightforward factual disputes will generally require no more than findings on the specified charges. The court endorsed Sir Mark Potter’s explanation in Phipps v The General Medical Council, which reconciled that requirement with Gupta v General Medical Council. Fairness nevertheless requires reasons in an exceptional case where the basis of the decision would otherwise remain unclear.

4. This was such an exceptional case. The distinction between an actual accusation and an understandable perception of accusation required examination of conflicting contemporaneous material eight years after the interview. A few sentences explaining the rejection of the perception defence, the treatment of the subsequent accounts and the rejection of Dr Southall’s evidence were essential. Describing Ms Salem’s evidence as not wholly convincing inadequately explained a conclusion which necessarily impugned her honesty and integrity concerning her contemporaneous record. The related findings about the manner of questioning suffered the same deficiency.

5. The narrowly formulated charges did not permit adverse conclusions about the practitioner’s wider investigative remit or methods without a relevant charge and expert evidence on appropriate professional practice. Such unsupported conclusions could not properly inform the factual assessment. Nor could the social worker’s presence itself justify rejecting her evidence without evidence that her attendance was inappropriate. The court left open how far a transcript could supplement reasons, while cautioning against assuming that every submission of the successful party had been accepted.

6. A medical panel member need not share the practitioner’s specialism. Specialist issues should be addressed through expert evidence which the parties can challenge. By way of guidance, a year’s adjournment of a part-heard disciplinary hearing was unacceptable, and electronic recording of especially sensitive interviews would protect both professionals and interviewees.

   Penalties for the other proved charges required consideration by the panel. The parties were invited to make submissions on the appropriate order concerning the charges relating to Mrs M.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 407 , permission for a second appeal was granted and the appeal was allowed for inadequate reasons. Submissions were invited on the appropriate order concerning the disputed charges.
• High Court, Queen’s Bench Division, Administrative Court: Blake J, in [2009] EWHC 1155 (Admin) , dismissed the appeal against the panel’s decision in its entirety.
• General Medical Council, Fitness to Practice Panel: On 4 December 2007, the panel found serious professional misconduct and directed erasure under section 36 of the Medical Act 1983. Two sets of adverse findings were no longer challenged before the Court of Appeal.