GENERAL MEDICAL COUNCIL FITNESS TO PRACTISE PANEL (MISCONDUCT) On: Monday, 11 August 2008 Held at: St James’ Buildings 79 Oxford Street Manchester M1 6FQ Case of: DAVID PATRICK SOUTHALL MB BS 1971 University of London Registration No: 1491739 (Day One) Panel Members: Mr A Reid (Chairman) Ms V Atkinson Dr L Linton Mrs S Breach (Legal Assessor) -------------------------------------- MISS M O’ROURKE, Counsel, instructed by Hempsons, Solicitors, appeared on behalf of the doctor, who was present. MR R TYSON, Counsel, instructed by Field Fisher Waterhouse, appeared on behalf of the General Medical Council. -------------------------------------- Transcript of the shorthand notes of Transcribe UK Verbatim Reporting Services Ltd Tel No: 01889 270708 -------------------------------------- INDEX Page PRELIMINARY MATTERS 1 APPLICATION by MR TYSON re evidence 2 RESPONSE by MISS O’ROURKE 6 SUBMISSIONS by MR TYSON 11 SUBMISSIONS by MISS O’ROURKE 12 LEGAL ASSESSOR’S ADVICE 15 DETERMINATION 17 ------------------- A THE CHAIRMAN: This is a Fitness to Practise Panel operating under the General Medical Council (Fitness to Practise) Rules 2004 in the case of Dr David Southall. Dr Southall is present and is represented by Miss Mary O’Rourke, Counsel, instructed by Hempsons, Solicitors, and Mr Richard Tyson, Counsel, instructed by Field Fisher Waterhouse, Solicitors, represents the General Medical Council. Mrs Sarah Breach, to my right, is the Legal Assessor. Mr Tyson. B MR TYSON: Sir, before I do my opening I am afraid I am going to have to indicate that there is a legal argument which has to be dealt with first under Rule 22(a). THE LEGAL ASSESSOR: I wonder if I could interject at this point. The issue has been raised with me and it is an important preliminary legal argument. I will of course have to give advice at the end of the two submissions from Counsel, but I had not anticipated this submission and I do need time to consider my advice on what I think is a very important C topic. THE CHAIRMAN: When was the issue first raised? THE LEGAL ASSESSOR: The two Counsel and myself have had a meeting and it was raised in that meeting. The meeting only finished five minutes ago so I have not had any time to reflect. D THE CHAIRMAN: I am very conscious of the fact that this morning was set aside at the request of the parties, I understood so that preliminary matters could be discussed between you. I take it this is something new? MR TYSON: No, the morning was productively dealt with by endless discussions between my learned friend and myself but they did not result in agreement as to the E issues, so my learned friend and I discussed it extensively this morning and then we rehearsed our arguments in front of your Legal Assessor thereafter. Alas agreement did not come as a result of that, so the morning has been extremely productive, we have done all the things we should have done, but the fact remains we have ended up with decisions that the Panel are required to make rather than we have been able to make them amongst ourselves. I think that is a fair reflection. F MISS O'ROURKE: Sir, if I could just add this. I was not conscious that the morning was set aside for that at all. We got a notice of inquiry that told us we were starting at 1.30. It certainly was not our request to start later but it may well be it was a request from the General Medical Council side because of the absence of their Counsel last week on holiday that they wished this morning to look at matters, I do not know. Certainly I was G not conscious. We were here this morning at ten o'clock simply because I had not seen my client for four weeks so I agreed to meet him. This morning Mr Tyson and I had some discussions, they have come to virtually nothing and we have had discussions with your Legal Assessor shortly after she arrived and she has correctly said they finished less than ten minutes ago. Sir, I was told as we came into the room, and that is why I am here with one pad of paper only, that the Legal Assessor was going to ask you for time now rather than before you H heard the submissions so I did not even bring my documents in with me or my papers. I Transcribe UK VRS Ltd 01889 270708 D1/1 A was anticipating we were coming in here literally to say to you, “Sir, can we start at two or 2.15” or whatever it is. If you are going to start now and hear Mr Tyson, me in reply and then give Mrs Breach some time, I am going to need to go and get my papers because I have one pad of paper only. THE CHAIRMAN: As you are no doubt aware, Miss O'Rourke, it is part of the guidance for Chairs that we start on time, even if it is not going to be possible to get beyond a few B opening remarks, merely to ascertain what has gone wrong and why and deal with matters accordingly, but from what I understand this has not been a wasted morning in that work has certainly been done but unfortunately we are not yet at a stage where we can simply proceed. Legal Assessor, you are requesting how much time? C THE LEGAL ASSESSOR: If we could perhaps put the start of the hearing back until two o'clock? THE CHAIRMAN: Very well, two o'clock, ladies and gentlemen. Thank you very much. (The Panel adjourned for a short time) D THE CHAIRMAN: Welcome back everyone. Mr Tyson. MR TYSON: Sir, when I indicated earlier that there was going to be a legal argument in relation to this matter before you heard my opening perhaps I ought to amend it. There is going to be a definite legal argument. Secondly, there is going to be an argument whether to have a legal argument in relation to another matter, if I can put it that way. E Firstly I am going to deal with the definite legal argument; that is - and you have to hear this matter if I may say so wearing your hat as both judge and jury and if necessary what I am going to tell you you are going to have to expunge from your memory depending on your determination in this case but in the course of my opening in this case I seek to adduce evidence that since the last review hearing in July 2007 that Dr Southall has been found guilty of serious professional misconduct by another Panel in December of last F year. As a result of the finding of serious professional misconduct he was erased from the Register and also at that hearing an order of immediate suspension was made. That was subsequently found to have been made on a false basis from misunderstanding the transitional provisions. In April of this year the order for immediate suspension was dismissed by consent by the Administrative Court and hence we are back here, which we G otherwise would not have been. I say the fact of that conviction and the determination given by the Panel in December 2007 are highly relevant to the issues that you have to decide today. I say that for a number of reasons. Firstly, I would ask you to look at Rule 22 of the new rules. I do not know where in your bundles you have the new rules. I cannot take you to the proper tab reference for it. H Transcribe UK VRS Ltd 01889 270708 D1/2 A THE CHAIRMAN: It is behind our tab D, section 22, “Procedure at a review hearing”. MR TYSON: Correct. Rule 22, “Procedure at a review hearing”. You will see the order of proceedings at a review hearing shall be as follows: “The FTP Panel shall hear and consider any preliminary legal arguments” B which is what we are doing that now. Subject to that your role, sir, which you have largely dealt with in your earlier matter we come to (c) whereas I am for the purposes of these rules a presenting officer, not an easy role I find myself in, but I am the presenting officer and I have to do two things under (c). (c)(i), I have to inform the Panel of the background to this case and the sanction previously imposed, but I also have an important secondary role under (ii): C “direct the attention of the FTP Panel to any relevant evidence, including transcripts of previous hearings, and may adduce evidence and call witnesses in relation to the practitioner’s fitness to practise or his failure to comply with any requirement imposed upon him as a condition of the registration.” D The subsequent bit, the “or” bit, I have dealt with and I will deal with it openly now and say there is no evidence that there has been any failure to comply with conditions. I can put that, instead of putting that in a negative I can say is a positive, he has complied with his conditions, there is no issue as to that. There is an issue, I would say, as to his fitness to practise, “fitness to practise” being a global issue of course. I would submit to you that I am entitled - and indeed it defies belief that I cannot I submit, when I am dealing with the practitioner’s fitness to practise - deal with a fitness to practise matter that has E happened since the last hearing in July 2007.