Williams v General Medical Council

Neutral Citation Number: [2007] EWHC 2603 (Admin) Case No: CO/4595/2005 IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 9 November 2007 Before : THE HONOURABLE MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - Between : Dr Alan Williams - and - General Medical Council - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Appellant Respondent Mr James Turner QC and Mr Andrew Kennedy (instructed by Radcliffes Le Brasseur) for the Appellant Mr Roger Henderson QC, Miss Sarah Vaughan-Jones and Miss Anna Burne (instructed by Field Fisher Waterhouse) for the Respondent Hearing dates: 8-12, 15–16 October 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Davis : Introduction 1. 2. 3. Christopher Clark died on 13 December 1996. He was about 12 weeks old. Harry Clark died on 26 January 1998. He was about 8 weeks old. Both babies had appeared to be in good health in the immediate period before they died. Subsequently their mother, Sally Clark, was charged with their murder. On 9 November 1999 after a lengthy trial at the Chester Crown Court she was convicted (by a majority verdict) of their murder. An appeal against conviction was dismissed. Subsequently, in the light of further medical records and details which had been obtained (and which had not been produced at the trial) and in the light of further expert evidence obtained, there was a second appeal on a reference by the Criminal Cases Review Commission. That appeal was allowed by the Court of Appeal on 29 January 2003, with a fully reasoned reserved judgment handed down on 11 April 2003. No retrial was requested or directed. The proceedings were at all stages attended by huge publicity. Mrs Clark has since, very sadly, died. In the light of certain criticisms made in the judgment of the Court of Appeal and in the light of complaints raised by the family and supporters of Mrs Clark, the matter was the subject of investigation by the General Medical Council (“the GMC”). Proceedings resulted against two of the experts who had given evidence on behalf of the Crown at the murder trial to the effect that neither death was due to natural causes. One was Professor Sir Roy Meadow, a consultant paediatrician, the complaint being essentially in respect of certain statistical evidence that he had given. In due course, a Fitness to Practise Panel of the GMC found a complaint of serious professional misconduct proved and ordered that his name be erased from the register. However, an appeal to the High Court against the finding of serious professional misconduct (as well as against the sanction) was allowed; and that decision, in so far as it related to the finding of serious professional misconduct, was upheld by majority decision of the Court of Appeal: [2007] QB 462; [2006] EWCA Civ 1390. A complaint was also pursued (in the name of Mr Martin Bell MP, then the Clarks’ constituency MP) against Dr Alan Williams. Dr Williams was the Home Office accredited pathologist who had conducted the (only) post mortem examination for Christopher on 16 December 1996 and the first post mortem examination for Harry on 27 January 1998; he had produced post mortem reports in the usual way at the time and thereafter provided reports for the purposes of, and gave oral evidence at, the criminal trial. The hearing before the Fitness to Practise Panel of the GMC started on 24 January 2005. The Panel comprised a Consultant Surgeon, a General Practitioner, a retired Professor of Medicine and two lay members (a retired Director of Social Services and a retired University College Principal). All were experienced panellists. Dr Williams was represented by Mr James Turner QC, with Mr Andrew Kennedy. Mr Bell was represented by Mr Roger Henderson QC, with Miss Sarah Vaughan-Jones and Miss Anna Burne. At the outset, an application was made to the Panel on behalf of Dr Williams that the proceedings be stayed as an abuse of process. That application failed and the hearing continued. It was very hard fought. A great deal of evidence, primarily expert medical evidence, was called. There was extensive and minutely detailed cross- examination. The hearing had not concluded by 25 February 2005 and was adjourned, with most of the evidence by then completed, on 25 February 2005. A second session started on 20 April 2005 and concluded on 26 April 2005. The third, and final, session (preceded by the lodging of some written submissions and a Panel reading day) started on 26 May 2005. On the afternoon of 27 May 2005 the Panel delivered its finding of fact on the individual heads of charge and adjourned the hearing to 31 May 2005. On 31 May and 1 June 2005 further submissions were made, which included a request on behalf of Dr Williams for reasons for the findings of fact to be given. The hearing was then adjourned further for the Panel’s ultimate determination. That determination was given on 3 June 2005; and reasons were also given in relation to certain of the findings of fact. The total hearing, in terms of hearing days, had extended over 32 days. The determination of the Panel was that it found Dr Williams guilty of serious professional misconduct, although it expressly absolved him of any bad faith. The sanction imposed by the Panel, while leaving Dr Williams free to continue with his principal area of practice as a consultant histopathologist, subjected the registration of Dr Williams for a period of three years to a condition that he should not undertake any Home Office pathology or Coroners’ cases. Dr Williams appealed against that decision under the provisions of section 40 of the Medical Act 1983 as amended. The appeal has been the subject of considerable delay and three scheduled hearing dates in the High Court were vacated. Initially the 4. 5. 6. 7. 8. (principal) reason for delay was the non-availability of counsel; latterly, it was because it was thought desirable to wait upon the delivery of the Court of Appeal decision in the Meadow case. Ordinarily, the bringing of an appeal would have the result that the sanction imposed by the Panel would not take effect in the interim. In the present case, however, Dr Williams gave an undertaking to the Court on 17 February 2006, to last until the conclusion of the appeal or further order, in terms corresponding to the condition on registration imposed by the Panel. 9. 10. At the hearing of the appeal before me the legal representation was the same as below: the GMC, however, now (and without objection) standing in the shoes of Mr Bell, the original complainant. The estimated length of hearing (excluding pre- reading) was seven days and the actual hearing before me lasted the full length of the estimate. The overall position of Mr Turner on behalf of Dr Williams – and putting it for the moment very broadly – is that Dr Williams has been made a scape goat. If it be the case that Sally Clark did not receive a fair trial, then that was not attributable to him alone, but involved the failings of many others and also involved failings within the system. If it is the case that Dr Williams may have made errors, then that has been shown only with the benefit of hindsight; but at the time, and by reference to then prevailing standards and practices, such errors were understandable both in professional and in human terms. 11. The actual arguments raised, before me, were (as refined in the course of argument) in summary these:- 11.1 The Panel should have stayed the proceedings at the outset of the hearing. 11.2 The procedure thereafter adopted by the Panel with regard to the conduct of the proceedings was unfair and improperly prejudicial to Dr Williams. 11.3 The advice given to the Panel by the Legal Assessor was wrong in various respects so as to render unsafe the eventual decision of the Panel. 11.4 The findings of fact made by the Panel (save for those which were expressly admitted at the time) were in some respects perverse and/or unsupported by any evidence; in other respects were not justified and/or against the evidence; and in all respects were wrong. 11.5 If the findings of fact were justified, then the finding of serious professional misconduct was not justified and was wrong. 11.6 Finally, the sanction imposed was unjustified and wrong. I do not think it much of an exaggeration, if any exaggeration at all, to say that the arguments advanced on behalf of Dr Williams more or less came down to saying that the Panel got it wrong in almost every conceivable respect. Approach of Appellate Court 12. It was common ground before me that the appeal should be allowed if the Panel’s decision was (a) wrong or (b) unjust because of a serious procedural or other irregularity: see CPR 52.11(3). An appeal to the High Court under section 40 of the 13. 14. 15. Medical Act 1983 as amended is by way of rehearing: para 22.3(2) of the Practice Direction (52PD.116). The appellant rightly did not seek a total rehearing (in the form of all the evidence being taken afresh, etc.). I was shown a number of authorities on the Court’s approach in a context such as the present, but it is not necessary to refer to them all expressly in this judgment. It is common ground that a degree of flexibility is available to the court in this context. On any view, it is clear, and as is confirmed by authority, that a degree of respect should be shown to a specialist panel such as the present as being representative of the profession and as being there to uphold medical particularly where an evaluative finding of serious professional standards: misconduct is made or a particular sanction imposed. Nevertheless, I agree with Mr Turner that the degree of respect or deference to be shown may vary, depending on the context of the particular matter under challenge. For example, if the argument is that a finding of a Panel was unsupported by any evidence then that is, essentially, a purely legal matter and an assessment which a court can undertake entirely for itself. But I do not think it productive to gloss further the wording of the Practice Direction or Rule 52.11: the more so when the applicable approach is the subject of full and helpful discussion by the Court of Appeal in Meadow: see in particular paragraphs 117 to 128 of the judgment of Auld LJ. But ultimately, if the appellate court is of the view that a decision of a Fitness to Practise Panel is wrong (or, as the case may be, unjust) then it should not shrink from saying so: “the courts should be ready in appropriate cases, and if necessary, to substitute their own view for that of disciplinary bodies” (per Auld LJ at para. 120). There is one further point that I should mention at this stage. For the purposes of this appeal, I was asked to undertake a detailed reconsideration of much of the evidence. Although not ultimately asked to read all the transcripts I was all the same asked to read, and did read, not only many documents and reports but also scores of pages of transcripts relating to the oral evidence of a number of the witnesses below. Mr Turner submitted that, in circumstances where there were no substantial disputes as to credibility, I was in as good a position as the Panel to assess the evidence. I do not agree. Transcripts do not always tell the whole story, as any advocate knows. In any case, it is not simply a question of credibility: it can be a question of reliability, of cogency. In this case, the Panel had an advantage I did not have. I can accept that I should not impose undue deference in this context; but I cannot accept that I am in “as good a position as the Panel” to assess all the evidence. The Background Facts 16. 17. A very helpful statement of the background facts, and of the course of events up to and during the trial, is to be found in the second Court of Appeal decision (the one which allowed the appeal) in this case: see in particular paragraphs 1-93 and 111-137 of that judgment ([2003] EWCA Crim 1020, [2003] 2FCR 447). Since anyone reading this judgment of mine presumably either will have read or will have access to a report of that judgment, I will outline the background facts only quite shortly here. Dr Williams’ main area of practice is as a consultant histopathologist: but, as I was told, about 20% of his workload was as a forensic pathologist. He has considerable experience and had before the Clark case given evidence in a number of high profile cases. 18. As a Home Office accredited pathologist, Dr Williams was required to observe, among other things, the Home Office Policy Advisory Board for Forensic Pathology Practice Guidelines. The then Guidelines (published in May 1996) provided, in part, as follows:- “Importance of notes Comprehensive, contemporaneous notes are essential and should be taken of every procedure undertaken. Such notes may be written or dictated, and should be accompanied by diagrams where appropriate. These notes must be retained, as should all tapes, as they may be required in subsequent court proceedings. The advice given in a previous section also applies here; notes must be retained until the end of the normal legal process, and should probably be kept until any sentence has been completed. … Conduct of the examination The level of dissection in each case must be comprehensive and appropriate. During the post mortem the pathologist must ensure that all relevant findings are accurately and adequately described together with weights and measurements as appropriate. … Further examination and the involvement of other specialists If a further or more extensive examination of the body is considered necessary then this should be undertaken. If the case requires the assistance of other specialists, for instance a paediatric or cardiac pathologist, or a neuropathologist, it will be the responsibility of the pathologist acting on behalf of the Crown to make the appropriate arrangements. In cases involving infants and young children the pathologist must consider whether an examination by an approved paediatric pathologist or a conjoint examination with such a specialist would be appropriate. In such cases the pathologist must offer relevant advice. … … The pathologist’s report The report issued by the pathologist to the coroner and the statement submitted to the police regarding the post mortem examination and any subsequent investigation should be of a high standard in presentation and appropriate to the purpose for which it is intended. It must include a detailed description of the post mortem findings and offer conclusions which interpret these findings and any other relevant investigations undertaken. The findings should be laid out in clear, concise language which will be readily understood by lay individuals. The conclusions should be as full as practicable, and based upon the material and information available at the time the report is prepared. In due course the conclusions may be supplemented by further reports based upon material or information which subsequently becomes available. Conclusions should have a proper scientific basis and should not be unduly speculative. The report must not omit properly considered conclusions which appear relevant but which may not appear to agree with the investigating team’s view of the case. … Disclosure of information to the defence There is a duty on the pathologist acting for the police to notify them, and through them the Crown Prosecution Service, of the existence of ‘unused’ material the presence of which may in certain circumstances be disclosed to lawyers acting for the defendant in a criminal trial. As well as samples taken at autopsy, such material may include notes made during the course of an examination, reports, and the first drafts of statements. More detailed advice on what constitutes unused material and the steps which have to be taken will be issued at a later date.” 19. 20. 21. So far as Christopher was concerned, the post mortem examination was conducted on 16 December 1996. The very fact that it was undertaken by a Home Office Pathologist, in circumstances of the sudden death of a previously apparently healthy baby and where the pathologist had requested the police to attend the examination, connoted an index of suspicion at that time. Samples and slides were taken for testing and analysis. Samples were also sent – in accordance with applicable protocols – for microbiological and biochemical testing. In his four page post mortem report, Dr Williams expressed the opinion that death was due to lower respiratory tract infection. In the section of the report relating to past medical history reference was made to Christopher in the past having had a spontaneous nose bleed and also that he had a cold. External examination noted certain bruises. A “small split and slight bruising into the frenulum between the upper lip and jaw” was also recorded. The bruises were also marked on a standard form body diagram Dr Williams used, although the split and bruising to the frenulum was not marked on an available standard form of mouth diagram. On internal examination, no evidence of bruising or fracture to the skull was noted, nor any evidence of extradural or subdural bleeding. The cerebro spinal fluid was recorded as clear and as having been sent for culture. Normality was in effect recorded for the various systems. Under the heading “Gastro-intestinal system”, the opening remark was: “The mouth, apart from the frenulum injury, is normal.” Post mortem histology reported normality, save for focal acute inflammation of the lung and focal haemorrhage and inflammation of the spleen. The report concluded:- “In summary, this is a well nourished male infant 12 weeks of age showing evidence of respiratory tract infection with inflammation of the right lower lobe of lung predominantly. Cultures and histology have been taken. In my opinion the cause of death is 1(a) lower respiratory tract infection.” 22. 23. 24. After the post mortem examination, the death was not treated as suspicious and the body was released for cremation the following day. The inquest was closed on 12 March 1997. So far as Harry was concerned, Dr Williams performed a post mortem examination on 27 January 1998, the day after death. Clearly, in view of the fact that this was the second death in the family of a previously apparently healthy baby, this had to be and was treated as a high index of suspicion case. The police were closely involved. In the final version of his post mortem report (there were preceding versions) it was recorded that no fractures were detected on full skeletal x-ray. Certain marks to the body were noted on external examination. An area of haemorrhage to each eye was noted. Evidence of swelling of the spinal cord within the dura was noted and “detailed examination shows extradural haemorrhage on the posterior service of the thoracic spinal processes … .” So far as respiratory system was concerned, it was among other things recorded that the second right rib showed a small area of callus formation and the costal cartilage of the right first rib was dislocated from the end of the bony section. 25. Under the heading “Post Mortem Findings” this was said:- “There is evidence of haemorrhage behind both eyes. There is evidence of old haemorrhage around the base of the right temporal lobe. There is haemorrhage in the spinal canal and possible old fracture of the right second rib. There is slight extradural haemorrhage in the left occipital fossa. There are no macroscopic features of sudden infant death syndrome.” Under the heading “Post Mortem Histology” it was stated with regard to eyes that “Both eyes show extravasation of blood into the retinas …”. With regard to the brain it was stated “There are occasional contusional tears containing red blood cells (i.e. not artefactual). …” 26. The conclusion was stated in these terms:- “There is no evidence in this child of congenital abnormality. There is no evidence of acute infection or inflammation, particularly there is no evidence of pneumonia, tracheo- bronchitis nor meningitis. There is no evidence that this child died as a result of natural disease. The features found are not those described in ‘cot death’. The spinal injuries and lesions in the brain and eyes are those that would be expected from non-accidental injury. A child of this age would be unable to move itself and would only just be supporting its head (5 weeks post term, ie, 3 weeks premature birth). The pattern of injury is that which is seen in shaking. Some injuries are older showing haemosiderin (from the breakdown of blood in bruising) and inflammation. Others are fresh and do not contain iron nor inflammation. The other post mortem findings are those of a child shaken on several occasions over several days.” (I add that it was agreed in evidence before the Panel that the phrase “there is no evidence of …”, as used by a pathologist, is not understood in the strict legal sense 27. 28. 29. 30. 31. 32. but as conveying a conclusion that the evidence available to the pathologist did not support a particular diagnosis.) At the time of his initial examination, Dr Williams had prepared a body diagram. This noted certain of the marks, but did not include any notation of the rib callus or rib dislocation identified in the text of the report. As a result of Dr Williams’ preliminary conclusions (which led to his final conclusions) Mrs Clark, and indeed Mr Clark, were arrested and interviewed. In addition the case of Christopher was, on Dr Williams’ suggestion, reviewed. Dr Williams, having reconsidered that case and having reviewed the slides of Christopher’s lungs, revised his opinion that Christopher had died of lower respiratory tract infection. He now indicated that there was evidence suggesting death by non- natural causes, such as by smothering. In due course, at the criminal trial, he was to give answers in his oral evidence which suggested that he accepted that his original conclusion of lower respiratory tract infection was “totally wrong”. So far as Harry was concerned, a second post mortem was undertaken by Professor Emery (since deceased) and Dr Rushton, with Dr Williams in attendance. Further, the brain and spine had, after initial examination by Dr Williams, been sent to Professor Green and then to Dr Smith (a neuropathologist) for further examination. It was common ground before me that Dr Williams’ post mortem report with regard to Harry had referred to three classic indications of baby shaking: intra-retinal haemorrhage; subdural spinal haemorrhage; and contusional tears to the brain. In addition it had identified rib injuries. By the time of the trial, Professor Green (following a meeting with the Defendant’s expert shortly before the trial started) had accepted that the slides were not sufficient to show retinal haemorrhages and that the slides had previously been misinterpreted. Further, Dr Smith had by then indicated that she herself had identified no contusional tears which were not artefactual. There was also, so it would seem, an accepted doubt on whether there was swelling in the spine or relevant subdural haemorrhages or (if there were) whether they were of significance. As it was put in argument before me, some of the planks of the Crown’s case at the criminal trial had either been removed or were “crumbling”; and at all events it appears that a good deal of emphasis was being placed on the reported rib injuries. Just as in the case of Christopher, samples had been sent off with regard to Harry for microbiological and biochemical analysis. It is of some note that the initial hospital microbiological tests for Harry were sufficiently unusual for it to be thought appropriate for samples to be sent to the Central Health Laboratory in Colindale. Its report based on samples from bronchi, trachea, lung tissue and cerebro-spinal fluid indicated staphylococcus aureus (“SA”) isolated. In addition, virology and biochemical reports were obtained (without any narrative commentary). The biochemical reports indicated raised protein levels in the CSF (and also low glucose levels) which might be an indication of inflammation. Further, the presence of polymorphs (also a potential indication of inflammation) was noted in the CSF. The potential significance of all this for the purposes of the criminal proceedings is set out in the Court of Appeal judgment at paragraphs 111 to 137. 33. It was and is common ground that none of these reports was referred to in the reports of Dr Williams; none was disclosed to the defence; and none was produced at the trial at the Crown Court. Indeed they were not known to the prosecution team themselves. So far as Dr Williams was concerned, he had had initial discussions with Dr Wills (a microbiologist colleague at Macclesfield Hospital); and Dr Wills had indicated that there was no evidence, from a microbiological view, that death was due to infection or other natural cause. Subsequently, in the light of the microbiological results received back from Colindale, Dr Wills wrote a letter to Dr Williams dated 3 March 1998. It started: “As you know, we isolated [SA] from the throat, lung, bronchus, trachea and CSF … .” It went on, in referring to the identified presence of SA, in the following terms:- “Therefore, in the absence of any localised inflammatory response and in the absence of any suggestion of immune deficiency, I think it is unlikely that this organism contributed to the death of the child. It is somewhat unusual to find a contaminating organism so widely spread and it may be that there was a transient or terminal bacteraemia.” 34. 35. It has never been disputed that those results were indeed unusual (“abnormal”, as it was sometimes said). It equally is hard to dispute that the letter on its face (“unlikely”) may be suggestive of at least the possibility of death through infection. The view of Dr Williams, however, was that, especially given that there was no other sign of infection or indication of illness before death, the presence of the SA was to be explained as post mortem artefact and that it had no relevance to the cause of death. Those reports, and the letter of Dr Wills, only became known to the Defence team after the first appeal had been dismissed, in circumstances explained in the Court of Appeal judgment. (In fairness to Dr Williams, he readily produced the papers when asked and indeed the impression one administrator had was that Dr Williams thought that the defence team had already had them.) It was that material which formed the basis of the fresh evidence of Professor Morris which caused the Court of Appeal to conclude that a doubt had been raised and to quash the conviction. The Court of Appeal also took the view that if the conviction for the murder of Harry was not safe then the evidence relating to Christopher could not of itself justify the upholding of the conviction for the murder of Christopher: see paragraph 65 of the judgment. There is no doubt, all the same, that there was (and is) a significant body of expert opinion coinciding with the view of Dr Williams, to the effect that these microbiological and biochemical reports with regard to Harry do not show that death was due to natural causes. But it was not sought to be said in the Court of Appeal that the view of Professor Morris was not one which could reasonably be held by a responsible doctor. That being so, and having regard to the approach of the Court of Appeal itself, I was not over-impressed by Mr Turner’s suggestion that “opportunistic advantage” was taken by the defence team on the evidence of an “enthusiast” (viz. Professor Morris) in advancing the second appeal. The GMC Proceedings 36. As will be apparent, the judgment of the Court of Appeal makes criticisms of Dr Williams’ failure to disclose the microbiological (and biochemical) information at any stage in the criminal proceedings. The “provisional view” was expressed (paragraph 164 of the judgment) that he had fallen a very long way short of the standards to be expected of someone in his position upon whose evidence the court was inevitably going to be so dependent. The Court of Appeal having made clear its view that no bad faith was being suggested, Dr Williams (reasonably, as it seems to me) did not seek to answer at that stage the criticisms of him. Mr Turner made it clear that Dr Williams considered and considers those criticisms to be unfair. 37. 38. 39. The matter was then investigated by the GMC, doubtless in part because of the Court of Appeal judgment but in any event, no doubt, because of complaints already made by Mrs Clark’s family. I was told by Mr Turner that it was Dr Williams’ initial expectation that the investigation, and any subsequent charge (if there were a charge) would be confined to the issue of disclosure (which was the issue dealt with by the Court of Appeal). But in the event the charges eventually brought went much further and extended not only to the disclosure matter but also to criticisms now made with regard to the actual post mortem examinations conducted by him on each of Christopher and Harry. The essential chronology in summary form is as follows. I take it from the very detailed chronology, to which I have had regard, provided on behalf of the appellant. Even before the second Court of Appeal decision, complaints had been raised with the GMC by Mr Bell and others against Dr Williams (and others). In the event it was, understandably, decided that the matter should await the outcome of the second appeal. 39.1 39.2 39.3 39.4 39.5 39.6 After the reserved judgment was handed down on 11 April 2003, further letters were sent by Mr Bell to the GMC. On 15 April 2003 Dr Williams was invited to submit observations on the matters raised. Observations were put in and in fact there was extensive correspondence between Dr Williams’ solicitors and the GMC. On 17 October 2003 it was indicated, pursuant to Rule 6 of the relevant Conduct Rules, that the screener had referred the matter to the Preliminary Proceedings Committee (“PPC”). Further representations were put in. On 20 November 2003 the PPC decided to refer the matter to the Professional Conduct Committee (“PCC”), which has since under a change of the rules in effect become known as the Fitness to Practise Panel. On 2 December 2003 the GMC wrote a letter summarising the basis on which the matter had been referred to the PCC. That letter stated that the PPC had “noted that the allegations concerned post mortems you had carried out as a Home Office Pathologist on Christopher and Harry Clark”: the main emphasis of the letter, however, appeared to be on the issue of the microbiological results. On 12 January 2004 there was provisionally set a hearing date of 18 October 2004. It was envisaged that the complainant’s evidence in support of charges to be pursued would have been served by around May 2004 (which also would have accorded with the GMC case protocol). There were various chasing letters from Dr Williams’ solicitors and certain files were served. On 14 May 2004 the complainant’s solicitors indicated difficulties in their obtaining information and documents and in obtaining experts’ reports. There was then further protracted correspondence, Dr Williams’ solicitors protesting about the delay and lack of formulated charges. On 28 June 2004 the substantive hearing was refixed for 24 January 2005, for a three week period (later increased to four weeks). There was further correspondence, Dr Williams’ solicitors pressing for formulated charges and for service of the evidence to be relied upon and complaining of the delay. Certain statements, in draft form, and other materials were supplied at various stages. 39.7 39.8 On 19 November 2004 a “set of draft charges” was supplied. On 10 December 2004 a detailed Notice of Inquiry, containing the heads of charge to be relied on, was served. Bundles for the hearing (not in complete form) were served on 22 and 23 December 2004. The hearing commenced on Monday 24 January 2005. Further materials (including a statement from an expert) had been served shortly before that date. 40. It should be noted that at this time Dr Williams was facing proceedings before another tribunal relating to his position as a Home Office Pathologist in connection with the Clark case (before me called “the PABFOP proceedings”). He had the same legal team acting for him, and clearly time and attention also had to be given to those proceedings. That tribunal had also, as it happened, set a hearing date of 24 January 2005. But ultimately, on 17 January 2005, it was persuaded to adjourn that hearing pending the outcome of the GMC proceedings. (For completeness only, I mention that I was told that the PABFOP proceedings eventually resulted, after an appeal, in a suspension of Dr Williams’ accreditation as Home Office Pathologist for a period of 18 months. Given, however, that the charges, procedures and evidence were not the same as in the GMC proceedings, it was rightly agreed before me that those proceedings have no bearing on the appeal in this case). 41. Against that background, I turn to the Grounds of Appeal – nine in number – advanced on behalf of Dr Williams. Application to stay or dismiss the proceedings (Ground 1) 42. It was argued on behalf of Dr Williams at the outset of the hearing that the Panel should stay or dismiss the proceedings on the basis that there had been a failure to comply with Rule 17 of the relevant Conduct Rules, being the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 as amended. By Rule 17(1) it is provided:- “As soon as may be after a case has been referred to the Committee for an inquiry the Registrar shall send to the practitioner in compliance with rule 54 a notice, in these rules called a Notice of Inquiry, which shall:- (a) specify, in the form of a charge or charges, the matter into which the inquiry is to be held …” It was common ground before me that referral took place on 20 November 2003 and that the Notice of Inquiry was sent on 10 December 2004. It was further argued on behalf of Dr Williams that there was an abuse of process by reason of delay; and that pursuit of the proceedings was in breach of the right to a trial within a reasonable time for the purposes of Article 6 of the European Convention on Human Rights. It was argued (by reference to the familiar two-pronged test) that a fair hearing could not now be had; further or alternatively, that it was not fair in the circumstances that Dr Williams should be subjected to a hearing. 43. The argument before the Panel was very extensive. Detailed reference was made to the precise chronology of events and legal authorities were cited. The Panel, after receiving advice from the Legal Assessor, refused the application on the second day of the hearing, giving a reasoned decision. For the purposes of the Article 6 argument, it concluded that time ran from service of the Rule 6 letter on 17 October 2003; further that it was “entirely sensible” for the PPC not fully to consider the complaints until after the Court of Appeal judgment was handed down on 11 April 2003. Mr Turner did not challenge those conclusions, although he did say that the asserted delay since that time had to be put in the context of the post mortem examinations having been undertaken as long ago as 1996 and 1998 and of a criminal trial which had taken place in 1999. 44. The nub of the Panel’s decision on this issue is in the following passage:- “The Panel has determined that the time that has elapsed between the Rule 6 letter and the hearing, is in the circumstances of a case of this nature, not unreasonable. Even if that were not the case, Dr Williams has not demonstrated that he has suffered such serious prejudice as would deprive him of the ability to have or prepare for a fair hearing. With regard to the second strand of this submission, you point to an alleged failure to comply with Rule 17(1) and what you have described as “a piecemeal provision of evidence”. You contend that these matters amount to a case in the “exceptional” category. The Panel is not satisfied that there has been a breach of Rule 17(1); furthermore even if there had been such a breach, neither the provision of evidence in the manner described nor the breach would constitute an “exceptional” case.” The Panel also stated that in reaching its conclusion it had had regard to issues of proportionality and had weighed the interests of the doctor against the wider public interest. 45. In my judgment, such a decision cannot be said to be wrong or (if this is a different test) unjust. 46. Mr Henderson before the Panel, as before me, advanced a number of reasons as to why a lengthy period was required before the Rule 54 notice could be served. On any view, this was an extremely complex matter in which to formulate charges and, moreover, materials and evidence had to be obtained from third parties (such as the police) and from Dr Williams; consents had to be obtained for release of papers from the Family Court; and reports obtained from busy experts. Close consideration also had to be given to the matter. 47. Further, he asked, where was the prejudice occasioned – that is to say, prejudice of such kind as would deprive Dr Williams of a fair hearing? Mr Turner complained that the Legal Assessor was wrong to advise the Panel that it was for Dr Williams to demonstrate prejudice. That is an unrealistic quibble. If prejudice was being asserted, it needed to be identified. In the event, no express prejudice was identified. It is not said, for instance, that, in the period of the asserted delay from 2003, a crucial witness had died in the interim or crucial documents had gone missing or anything like that. Mr Turner did advance, in Ground 2, general arguments based on delay; but again no specific prejudice in that regard based on the asserted delay from 2003 was particularised or identified. In effect, as Mr Turner accepted, he was arguing for inferred prejudice arising from the delay in the form of fading memories; and in that regard he also understandably stressed that the matter was hanging over the head of Dr Williams in the meantime. 48. Given the circumstances, I can see no error in the Panel’s conclusions that the delay was not unreasonable and in any case that insufficient prejudice had been shown to justify a stay. 49. Mr Turner said that the defence team had been prejudiced and “boxed in” in their preparation for the hearing by the late service of the Notice of Inquiry and of the supporting evidence and materials. I accept that it was only on service of the Notice of Inquiry that Dr Williams knew the precise case which he had to meet. But in general terms he already knew what he was at least prospectively facing (at all events so far as the microbiological results were concerned) and he also had, albeit in piecemeal form, quite a lot of the documents which were to be deployed before the hearing. Further, Dr Williams had available to him a highly experienced and hard- working team in his solicitors and counsel; and I have no doubt that they were able to get to grips with all the issues and evidence in time for the hearing on 24 January 2005 notwithstanding late service of some of the documents and evidence. 50. In this last respect, two particular points may be noted. First, at a hearing on 17 January 2005 before the tribunal in the parallel PABFOP proceedings, Mr Turner told that tribunal with regard to the GMC proceedings:- “The vast bulk of the evidence has now been served. I think there may be some bits and pieces still to come but I do not think that there is anything that is going to take us by surprise and everyone is ready, willing and able to for the GMC hearing to take place starting next Monday.” 51. 52. It is right to say that he did explain to the PABFOP tribunal that he would be applying at the outset to stay or dismiss the GMC proceedings. Even so, that statement speaks for itself. The second point (perhaps reflecting the first) is that at no stage did Mr Turner seek an adjournment of the GMC proceedings. I would add - although of course this could not have played any part in the Panel’s thinking - that a review by me of those transcripts of evidence and written submissions in the GMC proceedings to which I was referred indicated to me that Dr Williams’ team had a meticulous understanding of all the issues and evidence. There was also, Mr Henderson observed and as the Panel noted, a clear public interest – quite apart from the interests of the complainant and the Clark family – in the matter being determined. I would accept that a finding that the delay which had occurred was “not unreasonable” is not to be simply equated with a finding that the Notice of Inquiry had been served “as soon as may be” (which is the wording of Rule 17(1)) after a referral: there is a distinction, even if perhaps not a very pronounced one. I do have doubts as to whether the Notice of Inquiry was served “as soon as may be” after the referral. But whether or not that is so Mr Turner rightly disclaimed any argument that a breach of Rule 17(1) would of itself require a stay or dismissal. Given that, any breach of Rule 17 as occurred would have been of no practical significance, given that no material prejudice was occasioned. Further, the Panel also had expressly concluded that even if there were a breach of Rule 17 no exceptional case justifying a stay was shown. That was a proper conclusion. 53. Mr Turner submitted that I should exercise my judgment and discretion entirely afresh on this issue of stay without regard to the Panel’s reasoning and conclusions. I doubt that is right. But if (contrary to my own view) it is right then I would simply say – reflecting what I have said above – that my judgment is that the Panel’s decision on this was the correct decision and I would have reached and do reach the same conclusion myself. Delay (Ground 2) 54. 55. The argument here was that the Panel failed to make due allowances in favour of Dr Williams by reason of the delay that had occurred. But for the purposes of Ground 1 that cannot avail him, if only given the finding that the relevant delay was not unreasonable; and on wider grounds there was not particularised or identified any issue on which Dr Williams had been prejudiced by overall delay, whether since 1996 or 2003. This point was made very shortly in the written Grounds and written submissions on behalf of Dr Williams and even more shortly in oral argument. As an independent ground, there is nothing in it. Rejection of submission of no case (Ground 3) 56. At the close of the complainant’s case before the Panel, Mr Turner made a submission of no case under Rule 27(1)(e) of the Conduct Rules. That was upheld in respect of a number of relatively minor matters contained in the Heads of Charge: in all other respects it was rejected. Ground 3 challenges that rejection. 57. Mr Turner, however, wisely decided that it was not profitable to pursue such a challenge on appeal. He was content to subsume such arguments as he had into his challenge under Ground 6 to the ultimate findings of fact made by the Panel, after the conclusion of all the evidence and submissions on the evidence, under Rule 27(2). 58. In such circumstances, I need say nothing more about this Ground. Procedural Unfairness (Ground 4) 59. Three challenges are made as to the fairness of certain procedures adopted by the Panel. It is said that each taken individually has, or at least all taken cumulatively have, the result that there was not a fair hearing such that the ultimate determination cannot stand. 60. The challenges are these:- 60.1 60.2 60.3 The hearing did not proceed in one continuous session but was divided into three sessions, each separated by a significant period of time and with the final determination of serious professional misconduct and sanction being pronounced over four months after the start of the hearing. The Panel required Mr Turner to deliver his closing oral submissions at the end of the second session (on 25 and 26 April 2005) rather than immediately before it retired at the third session to commence its deliberations under Rule 27(2) on 26 May 2005. To the extent that the Panel had directed the lodging of written submissions between the second session and the third session, the arrangements for consideration of such submissions lacked transparency and were inappropriate; and either such written submissions were not, in the time available, given sufficient consideration or an appearance was created whereby there was a concern that all members of the Panel had not sufficiently considered such submissions. 61. A fourth challenge raised in the written grounds, to the effect that oral submissions sought to be advanced on behalf of Dr Williams were improperly inhibited by the Panel, was not pursued before me. 62. Mr Turner suggested that one reason why the hearing took so long, in terms of number of days, was because of the late service of the Notice of Inquiry. In my view, however, the reason in reality was because all matters were exhaustively pursued in very great detail before the Panel. He also suggested that the asserted procedural deficiencies contributed to what he said was the perversity of certain of the eventual findings. But whether the eventual findings were perverse or wrong is a separate matter, assessed by reference to the evidence (and is considered under Ground 6): it adds nothing to speculate as to the reasons behind the alleged perversity or incorrectness of such findings. 63. 64. 65. 66. As to the first challenge, I have no difficulty at all in accepting Mr Turner’s submission that to have a hearing spread over three sessions, with an interval between each, was “not ideal” (as he put it). But that is not the same as being unfair. In this case, the original time estimate proved insufficient. It no doubt was not an easy task readily to find a further date when all five members of the Panel and counsel – and remaining witnesses – could reconvene at an appropriate venue. The first session ended on 25 February 2005; the second session started on 20 April 2005 (that is a gap of some seven weeks) and ended on 26 April 2005; the third session started on 26 May 2005, preceded by a Panel reading day, and ended on 3 June 2005 with delivery of the determination on serious professional misconduct and sanction. These adjournments were occasioned as a matter of practical necessity. That sort of thing can happen (and does happen) from time to time in proceedings in tribunals or courts. There is no legal basis for saying adjournments of the kind that occurred here of themselves gave rise to an unfair hearing or to oversight of evidential issues: nor was any factual basis for it advanced. There is no reason to think that the Panel had forgotten matters. The Panel had heard a great deal of evidence; had received detailed submissions on the complainant’s evidence at the close of his case; had been provided daily with transcripts of the proceedings, which were available to it to refresh its memory; and in due course the Panel was provided with detailed oral and written submissions at the conclusion of all the evidence. For good measure, at no stage (whether at the second session or the third session) was it submitted on behalf of Dr Williams that the Panel should stop the hearing because of the adjournments that had occurred. The first time the point was raised was on this appeal (after the final determination, adverse to Dr Williams, was delivered). In my view, this first challenge is devoid of substance. The second challenge is likewise, in my view, devoid of substance. The Panel was, within the parameters of the Conduct Rules and of fairness, in charge of its own procedures. After the evidence was concluded by the third day of the second session there was still time – some 3 days – available for hearing closing submissions. It was reasonable to use that time for that purpose and the Panel was not obliged to accede to Mr Turner’s request made on 21 April 2005 to make his oral closing submissions at the third session, projected for May 2005. The reasons the Panel gave for its decision on 21 April 2005 to continue then shows that it had properly considered the points made. There was an understandable desire to progress the case and not to lose available time. Further, the parties were treated even-handedly in that the complainant’s closing submissions were required to be made then (as they were, both in writing and orally, over the equivalent of about one day, spanning the intervention of a weekend-break), followed by Dr Williams’ closing submissions, made orally but accompanied by outline written submissions. Thereafter Dr Williams was permitted to, and did, lodge detailed written closing submissions, these being lodged in two tranches on 16 May 2005 and 24 May 2005. 67. Oral submissions can have a vital role to play in many court and tribunal proceedings. But the value of written submissions in many such proceedings is also not to be under-estimated. In my view the course adopted by the Panel here cannot be said to have been unfair to Dr Williams. 68. I turn then to the third challenge under this Ground. 69. Mr Turner observed that the second tranche of his closing written submissions, though lodged – later than directed – on 24 May 2005, were not placed before all the members of the Panel until 26 May 2005 (after the Panel reading day on 25 May 2005). Those written submissions, in the form put before me, which comprised detailed and cross-referenced comments on each head of charge, in total amount to 112 pages and of those the second tranche amount to 39 pages. Mr Turner complains that they simply could not properly have been considered by the Panel, which delivered its findings of fact on the afternoon of 27 May 2005. Alternatively, he submits that there was an appearance of injustice (he talked darkly about a lack of objective guarantees) and that a legitimate concern was raised that there had been insufficient consideration of the points raised. 70. If that is so, and the Panel did not properly consider those submissions, then the Panel acted contrary to what it had stated during the second session in adjourning the matter to the third session. It stated there in its ruling on 21 April 2005, among other things, this:- “The Panel is determined to give itself sufficient time to consider fully all the evidence it has heard in the closing submissions and read any documentary submissions before making findings of fact. In making findings of fact in this complex case, and, if necessary, proceeding to Part 2, the Panel may need a longer time than is usual for its deliberations. To ensure justice for Dr Williams those deliberations must be unhurried. …” 71. On 26 May 2005 the chairman also had explained that the members had not considered the late delivered written factual submissions (second tranche) lodged on behalf of Dr Williams as they had not previously been supplied to them. As to the other previously supplied written factual submissions he said that members of the Panel had “individually in the privacy of their own homes or yesterday in this chamber worked through the factual submissions of both counsel”. Regrettably, Mr Turner was not prepared before me to accept the truth or accuracy of this last remark. But no evidence was put before me to show that it was not truthful or accurate, I have no reason whatsoever to think that the Chairman, speaking in the presence of the other members, was not endeavouring to be anything other than truthful and accurate, and I accept the statement as truthful and accurate. 72. As to consideration of the second tranche of written submissions (delivered late) that has to be put into the context of the Panel’s prior knowledge of the proceedings, receipt of daily transcripts and receipt of the closing oral (and written) submissions at the end of the second session. Further the Panel was not obliged (as Mr Turner himself accepted) to check every cross-reference in the closing written submissions: many of the points made – and a number were made very repetitively - would doubtless already have been within their recollection. Overall, I can see no basis for concluding that the Panel had departed from its previous expressly stated objective to give full consideration to all the submissions: and I also can see no reason not to accept the chairman’s statement, made just before the findings of fact were announced, that the Panel had considered all the evidence and taken account of the submissions. Further, in the circumstances I can identify no appearance of injustice sufficient to maintain this challenge. 73. In my judgment, therefore, there is no substance to any of these individual grounds of challenge. Nor, taking them cumulatively and taking them also cumulatively with the points raised under Grounds 1 and 2, is there any substance overall in the assertion of procedural unfairness. I do not think that any of the decisions of the Panel in these respects was wrong. Nor do I think that there was any injustice arising because of any serious procedural or other irregularity in the proceedings before the Panel: I can identify neither injustice nor irregularity. 74. I think it regrettable that it was thought fit to pursue these points on appeal. Inadequate Legal Advice (Ground 5) 75. The fifth ground also divides into three challenges, the premise being that the advice given by the Legal Assessor to the Panel was, so it is said, wrong or inadequate in various respects. It was also criticised “as unduly superficial”. The only particularised errors are as follows:- 75.1 75.2 75.3 The first is that there was a failure to advise accurately or sufficiently as to the approach the Panel should adopt towards the second Court of Appeal judgment. The second is that there was a failure to advise accurately or sufficiently in respect of the potential seriousness of the “consequences” of an erroneous act or omission. The third is that the Legal Advisor erred in advising the Panel to adopt the approach with regard to the issue of serious professional misconduct set out in the Court of Appeal decision in R (Campbell) v General Medical Council [2005] 1 WLR 3488, [2005] EWCA Civ 250 rather than the approach set out in the Privy Council decision in Silver v General Medical Council [2003] Lloyds Rep 333. 76. I turn to the first challenge. As I have said, the Court of Appeal in its judgment on the second criminal appeal undertook a detailed review of the potential significance, for the purposes of the murder trial, of the microbiological results and of the potential significance for such trial of the failure to disclose them. Its expressed overall criticism (amongst a number of individual criticisms) was that Dr Williams had fallen a very long way short of the standards to be expected of someone in his position. 77. Mr Turner did not dispute that the Court of Appeal judgment could properly be before the Panel, if only because it was part of the factual matrix leading up to the final form of the complaint. He also acknowledged that in the Meadow appeal it was stated (see at paragraph 72 per Sir Anthony Clarke MR) that the two Court of Appeal judgments in Clark were relevant and that it was “most unfortunate” that they were not put before the Panel in that case: albeit as the Master of the Rolls went on to say, “we should be careful not to place too much weight on them”. 78. Those comments of the Master of the Rolls would suggest that it would not be improper, in a context such as the present, at least to give some weight to the second Court of Appeal judgment. But Mr Turner submitted that, to the extent that the judgment was critical of Dr Williams personally for failing to disclose the microbiological reports, then the only proper course would have been to advise the Panel entirely to disregard such criticisms of Dr Williams by the Court of Appeal. He pointed out that Dr Williams had not been a party to the appeal, had not been represented at the appeal and (for understandable reason) had not, although given the opportunity, given his own version of events with regard to the proposed criticisms of him. He cited to me in this context the cases of re Norris [2001] 1 WLR 1388, [2001] UKHL 34 and Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, [2003] EWCA Civ 321. He submitted that neither the common law nor criminal law provided a route for the admission of the Court of Appeal criticisms as evidence of misconduct. 79. The particular passage of the Legal Assessor of which criticism is made, given on 26 May 2005, was as follows:- “It is for the Panel members to decide whether a Home Office forensic pathologist in the position that Dr Williams found himself at the time of the criminal process involving Mrs Clark had such a duty. The Panel may well consider that it should apply the Court of Appeal’s guidance in regard to the duty of disclosure in the criminal process and consider Dr Williams’ conduct in the light of that guidance. It is, however, important to remember, when considering the guidance given by the Court of Appeal, that the requirements of a forensic pathologist are partly governed by practice. Matters of practice are matters for this Panel to establish from the evidence; it is not for the Court of Appeal to say what are the proper practices; it is for the Panel. Duty in law is inevitably tempered by the particular facts and by matters of practice. It is therefore for the Panel to pay due regard to what the Court of Appeal has said by way of criticisms of the Doctor with reference to any duty of disclosure in the criminal process, but it is for the Panel to reach its own judgment both as to the nature of any duty owed by Dr Williams and as to whether such criticisms are justified.” Mr Turner submits that this advice was at best woolly and unclear; and at all events was wrong in indicating that “due regard” could be paid by the Panel with regard to the criticisms by the Court of Appeal of Dr Williams with reference to any duty of disclosure in the criminal process. 80. Mr Henderson, although submitting that it was “Kafkasque” for the Panel not to have regard to the Court of Appeal criticisms given that the judgment was properly before the Panel, was, I think, minded to acknowledge a degree of force of Mr Turner’s submissions on this point. But he submitted that in a context such as the present regard could properly be had by the Panel to those criticisms by the Court of Appeal. He relied, in this respect, on Rule 50(1) of the Conduct Rules. Rule 50(1) provides as follows:- “50.(1) The Professional Conduct Committee may receive oral, documentary or other evidence of any fact or matter which appears to them relevant to the inquiry into the case before them: Provided that, where any fact or matter is tendered as evidence which would not be admissible as such if the proceedings were criminal proceedings in England, the Committee shall not receive it unless, after consultation with the legal assessor, they are satisfied that their duty of making due inquiry into the case before them makes its reception desirable.” 81. 82. 83. I can agree with Mr Henderson that there is an element of unreality about the Panel being required to give no regard at all to the criticisms – which, in themselves, were not findings of primary fact but evaluative conclusions based on the information available to the Court of Appeal - given that the judgment was, as conceded, properly before the Panel. (Indeed, some of the complainant’s experts, such as Dr Anscombe, were cross-examined before the Panel as to the validity of the Court of Appeal’s approach or criticisms.) Moreover, such judgment could, in my view, properly be considered not only for its uncontroversial statements as to the background facts but also as to the legal requirements for, and potential forensic significance of, disclosure of the microbiological reports for the purposes of a criminal trial: and that is at least linked to the obligations on Dr Williams himself and, in turn, to the consequences of non-disclosure. Rule 50(1) extends not only to “facts” but also to “matters”. I would, if necessary, incline to the view that Rule 50(1) – giving it a broad interpretation – does provide a gateway for the admission of such criticisms. Mr Turner asked, rhetorically, how could it be “desirable” to admit such criticisms as evidence when, under general principles outside Rule 50, the approach of the general law was that it was unfair for matters of that kind, raised in the absence of the person concerned, to be adduced as evidence: but an answer is that that was for the Panel itself to decide. But quite apart from that, it seems to me that there is another answer to Mr Turner’s point. In the passage quoted above the Legal Assessor had in terms at the end of the passage stressed that it was for the Panel to reach its own judgment as to the nature of any duty owed by Dr Williams and whether the criticisms were justified. Moreover, immediately before the passage I have quoted, the Legal Assessor had given advice (of which no criticism is made) in these terms:- “The Panel has been referred to the judgment of the second Court of Appeal. The Court was concerned with whether or not Mrs Clark had been treated fairly by the Criminal Justice system. In the course of the judgment, criticisms were made of Dr Williams. These related to his competence and to whether he had behaved properly in relation to disclosure. It is essential that the Panel Members have well in mind that in these proceedings it is their decision which counts; they should not merely accept the Court of Appeal’s criticism. It is for the Panel Members to consider the evidence that they have heard and to reach their decision in the light of it. They are not bound by, and it is open to them to disagree with, the Court of Appeal’s criticisms. The judgment must be that of the Panel not of the Court of Appeal, who in any case, were concerned with proceedings to which Dr Williams was not a party and in which he was not represented.” 84. These passages, taken together, make it clear that it was for the Panel to make its own assessment, on the evidence before the Panel and in the light of the submissions to the Panel (Dr Williams of course now being a party) and by reference to the specific Heads of Charge before it. Self-evidently the Panel was dealing with additional evidence, and Heads of Charge, which were not before the Court of Appeal. All the indications from the subsequent findings and determination of the Panel are that that is exactly what it did – indeed it made no reference to the Court of Appeal decision at all. As said in Libman v General Medical Council [1972] AC 217 at p221 by Lord Hailsham:- 85. 86. 87. “The Committee under its President are masters of both the law and of the facts and what might amount to misdirections in law by a judge to a jury at a criminal trial does not necessarily invalidate the Committee’s decision. Where criticism is made of the legal adviser’s account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision” In my view, reading the Legal Assessor’s advice as a whole and considering all the circumstances in which the case was presented to the Panel, it cannot reasonably be so thought here. I can take the second challenge raised under Ground 5 more shortly. During the hearing one Panel member had raised a question as to the extent that the consequences of a doctor’s actions might bear on the issue of serious professional misconduct. In his advice given on 26 May 2005, the Legal Assessor said this:- “With regard to the relevance of the consequences of an act of alleged misconduct, I reiterate my earlier advice that potential consequences are indeed relevant to the quality of performance to be expected and thus to the question of serious professional misconduct. Potential consequences should be viewed in the context of the circumstances. This applied not only to allegations of misconduct in a clinical setting but also the alleged failure to disclose the microbiological results. The circumstances of course included the murder trial.” I cannot see anything wrong with any of this. I of course accept the submission that the actual consequences of an act or omission do not necessarily bear on the culpability involved. A very grave and culpable blunder may, in the event, have no adverse consequences; a very slight and minor slip may, in the event, have dreadful consequences. But the Legal Assessor here was talking not of actual but of potential consequences. In my view, his comments are wholly unexceptionable and I can see no error in them. Potential consequences of an act or omission are part of the context and can bear on the extent of the obligation undertaken; on issues of foreseeability; and hence on the issue of whether or not there is serious professional misconduct. Further, to the extent that it was submitted that this advice was not sufficiently accurate or full or clear, I can see no real basis for such a criticism – the advice, in my view, was sufficient on this point. 88. As to the third head of challenge, this related to the approach to be adopted in connection with the issue of whether or not there was serious professional misconduct. In the case of Silver, the Privy Council had apparently decided that matters that might seem to relate to mitigation or sanctions under Rule 28(2) could and should be relied on in considering the prior issue of culpability and serious professional misconduct (under Rule 27): see in particular paragraphs 17 to 20 of the judgment. That decision was fully considered by the Court of Appeal in Campbell. It concluded that the approach taken in Silver was wrong in principle and based on a misunderstanding of earlier Privy Council decisions. It was held that evidence which is exclusively relevant to personal mitigation was not relevant to the prior question of whether serious professional misconduct had been established: see in particular paragraphs 32 and 42 to 44 of the judgment. The Legal Assessor’s advice to the Panel was to the effect that, though the decision was that of the Panel, Campbell was binding authority. The Legal Assessor went on to say, among other things:- “Matters of personal mitigation are relevant only to sanctions. They cannot be used to downgrade what would otherwise be facts sufficient to support a finding of serious professional misconduct to some lesser form of misconduct.” That accords with the approach indicated in Campbell. 89. Mr Turner could cite no authority to me to indicate that a Privy Council decision (Silver) took precedence over a Court of Appeal decision (Campbell). In fact that would be contrary to the general rule. In Campbell, indeed, the Court of Appeal expressly stated that it was not bound by the decision in Silver: see paragraph 26. Mr Turner submitted that was said in the context of judicial review proceedings and not in an appeal under s40 of the Medical Act 1983 as amended. That is true but it is a distinction without a difference – the decision was made by reference to a determination of a panel conducted under the 1988 Rules. I am bound by the decision of the Court of Appeal in Campbell which in any case (if I may be permitted to say so) makes complete sense. Since that decision binds me, as the appellate court from the Panel’s decision, it is not arguable that the approach in Campbell could not properly be applied by the Panel in the proceedings below. 90. Mr Turner observed that some evidence may in some cases be relevant both to the issue of serious professional misconduct and to the issue of mitigation on sanction. That is obviously right. Indeed it was expressly so stated in Campbell: see paragraphs 20 and 43-44. Thus (by way of example) if credibility is in issue, previous good character and conduct may be relevant (as it also will be on mitigation). If good faith is in issue, previous good character and conduct may be relevant. In the present case the Legal Assessor duly gave to the Panel full good character advice (by reference to Dr Williams’ exemplary professional background and testimonials) in conventional JSB terms in the course of his closing advice. 91. This challenge therefore also fails. Findings of Fact (Ground 6) 92. 93. The challenge to the findings of fact made by the Panel, as advanced on behalf of Dr Williams, was exceptionally extensive. The evidence given below was subjected to minute analysis by Mr Turner and I also was taken to the 112 page commentary on the individual Heads of Charge deployed before the Panel and re-adopted before me on behalf of Dr Williams. It would be both impractical and profitless for me (in what necessarily is a long enough judgment as it is) to rehearse every point of argument, detail or nuance of the evidential points sought to be made, whatever Mr Turner’s aspirations may be. I have reviewed, and sought to bear in mind, the extensive extracts from the transcripts to which I was referred, with other written reports and documents, and all the written and oral submissions made. I should say that Mr Turner’s arguments focused almost 94. 95. 96. 97. exclusively on aspects of the evidence which tended to support, as he said, his case. In such circumstances, it was unsurprising that Mr Henderson felt constrained to respond by drawing detailed attention to evidence which went the other way. It was Mr Henderson’s submission – which I think, after considering the position, has turned out to be correct - that in truth there was no instance whereby Mr Turner could point to an absence of evidence to support the findings on any head of charge and in all instances there was an abundance of evidence to support the Panel’s findings by reference to each head of charge. In order to make sense of the submissions it is necessary to have regard to all the findings of fact made. These are appended to this judgment at Annex 1. In addition, also relevant is the Panel’s narrative determination for the purposes of Rule 29. Although Mr Turner at one stage said that that determination was of no relevance to the findings (he seeing fit to assert that it may represent an after the event rationalisation on the part of the Panel) he ultimately accepted that it could be taken into account for this purpose. The text of that determination is Annex 2 to this judgment. It may be noted that in a number of respects Heads of Charge were found to be not proved: it cannot be said that the Panel blindly and uncritically accepted all that the complainant was asserting. It will also be seen that the findings to the Heads of Charge are in a number of places accompanied by short reasons. It is, I gather, the usual practice of a Fitness to Practise Panel not to give reasons (and that is permitted by the Conduct Rules). When announcing its findings initially on 27 May 2005 this Panel did not give reasons. On 1 June 2005 Mr Turner then made lengthy submissions inviting the Panel to give reasons for its factual findings (having earlier also asked the Panel for a specific finding as to whether there was bad faith). This the Panel proved prepared to do. Mr Turner nevertheless made complaint before me that the reasons given were inadequate. In my view they were adequate. In any case, the Panel was not obliged under the Rules to give reasons. The particular findings which are asserted to be not just wrong but perverse and/or wholly unsupported by evidence were identified, after a number of promptings in pre- hearing correspondence for particulars, as Head of Charge 4 (relating to Charge 3(c)); Head of Charge 9; and Head of Charge 20, by reference to sub-paragraphs (g) and (h). All the other findings – save where those represent admissions – are said to be wrong. There are a number of general points highly relevant both to this Ground and to Grounds 7 and 8 (serious professional misconduct) which, though basic, were understandably emphasised on behalf of Dr Williams. 97.1 97.2 97.3 First, the findings of fact (on which the consequential evaluative judgment of whether or not there was serious professional misconduct was to be based) had to be proved to the criminal standard. Second, to be wrong is not the same as to be negligent or culpable. Third, in assessing whether or not there was clinical incompetence each matter had to be decided having regard to the well-known Bolam principle (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, as approved and expanded upon in subsequent decisions at the highest level). 97.4 Fourth, Dr Williams is to be judged by reference to standards and practices applicable at the time. 97.5 97.6 Fifth, Dr Williams is to be judged by reference to the situation and circumstances in which he found himself at the time, and not with the luxury of hindsight. Sixth, professional misconduct (if any) is not to be equated with serious professional misconduct. 98. Many of these points were expressly alluded to in the advice of the Legal Assessor and all would have been well understood by this experienced Panel. 99. 100. As will be apparent, the structure of the Heads of Charge is to divide the charges into two groups. Heads of Charge 2 to 8 related to the post mortem examination of Christopher Clark. Heads of Charge 9 to 22 related to Harry Clark, comprehending charges both in respect of the post mortem examination and also in respect of the non- disclosure of the microbiological (and biochemical) results/reports. Paragraph 22 of the written determination on serious professional misconduct, it may be noted, indicates that the Panel had reached its conclusion taking those Heads of Charge found proved collectively. In the reasons given for the findings and in the written determination the Panel indicated that each post mortem examination was conducted in circumstances where there was reason to suspect the possibility of unnatural death, and particularly so in the case of Harry (and, of course, in the event a criminal trial eventuated). There can be no dispute that the obligations and responsibilities of Dr Williams fell to be assessed in that context as well as by reference to the applicable standards and guidelines (including the then Home Office Guidelines). Christopher Clark The Individual Charges (Head 3) 101. 102. It was admitted in Head 3(c) that no diagram noting the injury to the frenulum of Christopher was made. That was one (though not the only) sub-charge relied on in support of the finding at Ground 4 that Dr Williams failed to discharge the duties of a competent pathologist: reasons being given with regard to Head 3(c). It is said that finding is perverse, and at all events wrong. The Home Office Guidelines indicated that post mortem notes should be accompanied by diagrams “where appropriate”. It was submitted that Dr Williams had no reason to think that such a diagram – although he had available his own standard form version of a mouth – was appropriate. The diagram, if made up, would indicate little more than the location, which was already identified (as was Dr Williams’ own view); the injury to the frenulum had been noted in the written report; and, further had been pointed out to those attending the post mortem; and police photographs had been taken (even though, as was quite common, they proved to be indistinct). Overall, it is said this omission cannot be said to fall below the applicable standards of competence and the criticism was “nit-picking”. 103. While Dr Armour (the expert pathologist called on behalf of Dr Williams) did not express any criticism in this regard in her evidence, Dr Anscombe (the complainant’s expert) did. Moreover, it was not really disputed that a torn frenulum, in the case of a sudden baby death such as this, was potentially a serious matter. In my view, set also in the context of this particular post mortem and of the Home Office Guidelines, the Panel’s conclusion cannot be said to be perverse; nor, in my view, was it wrong. It was a finding open to it. I would, however, agree with Mr Turner that of itself it was not a criticism of very great moment. Head 3(f) 104. It was submitted that, on the evidence, the Panel could not be sure of these matters. 105. To draw a distinction between “any inflammation” and “any significant inflammation”, for the purposes of the finding in respect of the Head of Charge as drafted is in my view of no great importance in this context. There was evidence from a number of experts that there was no inflammation of the lungs or of the spleen. Dr Armour also in essence agreed with that view both in her report and in her oral evidence. She thought the evidence of infection in the lungs was “clinically not significant” (a point Dr Williams himself had made at a pre-trial experts’ meeting on 9 September 1999) and that, as to the spleen, she would have interpreted that as extra medullary haemopoesis, not inflammation, with which Dr Williams himself subsequently agreed. In my view, there was ample evidence to justify this finding of fact. Head 3(h) 106. This was in part a qualitative judgment (to which Bolam principles potentially applied). It was submitted that slides were often difficult to interpret (as was said in evidence) and that these were matters on which responsible views could differ and that the evidence, taken as a whole, indicated as much. But these were important points, if correctly reported (it was conceded by Dr Williams subsequently they had not in fact been correct findings: see 3(f) above), since they supported a conclusion of a natural cause of death. Further, under the Home Office Guidelines conclusions were required to have a proper scientific basis. Dr Anscombe specifically criticised the (unqualified) findings as not of the requisite level of competence. The Panel in my view was entitled to accept that and to conclude, on the evidence, that this charge was made out. Head 3(i) 107. The Panel further expounded on its findings here in paragraph 10 of its written determination. There was abundant expert evidence to support it. Dr Armour was more or less alone in not making these criticisms, although she herself accepted, in common with all the others, that she would have recorded the cause of death as unascertained. In the course of the criminal trial Dr Williams (who by then had abandoned his previous reported view that Christophers’s death was through natural causes) himself gave answers to the effect that the opinion in his original report was “totally wrong”. It was also open to the Panel to conclude that the case required far more discussion, as opposed to terse reported description or conclusion, than it received in the original report: as was the view of experts giving evidence before the Panel. Both Dr Anscombe and Professor David, for example, stressed the potential significance, in a case of this kind of bruises to the body and injury to the frenulum – which were otherwise unexplained – and the need for discussion of these in ascertaining the cause of death: “these injuries demanded explanation”, as Dr Anscombe put it. Dr Armour also herself criticised the failure in the report to discuss the frenulum injury and bruising. That point (especially in the light of the Home Office Guidelines) is not answered by drawing attention to those matters which might tell in favour of death through natural causes. Given also the context of this particular post mortem examination, I was not much impressed by Mr Turner’s generalised reference to surveys contained in what were called PABFOP audit reports and CESDI surveys as to the quality of reports quite often experienced at the time as being a justification for the content and level of discussion in this particular report. Head 4 108. In the light of the (justified) findings under Head 3 c.e.f.g.h. and i, I can see no argument that the conclusion under Head 4(a) was wrong, let alone perverse. As to Head 4(b), this was self-evidently right. The consequence not only of Dr Williams’ (unqualified) conclusion that the cause of death was lower respiratory tract infection but also the lack of any discussion of matters which might perhaps point to or allude to the possibility of death through non-natural causes thereafter led the police not to treat the death as suspicious; and the body was shortly thereafter cremated and no further investigations made. Head 6(c) 109. Although Mr Turner raised some conceptual theorisation about what “comprehensive” means, set in context and having regard to the Home Office Guidelines this finding cannot be said to be wrong. Head 7 110. Head 8 111. I did not understand any real challenge to be maintained to the findings under Head 7 (b) and (c), which in any case were supported by the previous findings and the evidence: although I can agree that the word “changed” could as well have been used as the word “contradicted” – but that was the word of the charge. As to 7(c), the evidence shows that Dr Williams did accept at the time the accuracy of the minute of the meeting in this respect: certainly when sent to him for his comments he did not challenge it on this point. Taken simply on its own, the reason given for the finding here under Head 8(a) is a non sequitur. Because the original opinion was “wrong” it is not “therefore” incompetent to provide such an opinion which then had to be changed (or “contradicted”). But I cannot think the Panel made so elementary a mistake. In my view, the finding at Head 8(a) is to be set in the context of the previous findings, as Mr Henderson submitted and I agree. In fact, in my opinion and accepting Mr Turner’s submission, Head 8, both as to sub-paragraph (a) and (b), is, in substance, something of a summation charge and does not add very much to what has gone before. 112. I conclude that the various findings made with regard to Christopher were properly open to the Panel on the evidence; and that no such finding was wrong. Further, with regard to Christopher I think that the Panel’s approach as set out in paragraphs 5 to 8 of its written determination was justified; and likewise that its specific conclusions with regard to Christopher in paragraphs 9 to 11 were justified. Harry Clark 113. I turn then to the Heads of Charge relating to Harry. It is something of an irony that while many of the criticisms of Dr Williams relating to Christopher are to the broad effect that more should have been done to allude to the possibility of non-natural death many of the criticisms relating to Harry are that more should have been done to allude to the possibility of natural death. Head 9 (Eyes) 114. Head 9 related to the post-mortem examination of Harry so far as concerns the eyes. As to 9(c)(ii) there was, as the Panel found, an abundance of evidence to justify this finding: although of itself it would not (read objectively) be of any great moment: Mr Turner said that in fact no problem actually arose because of it. As to 9(d), (e) and (f) no findings constituting either adverse criticisms of or matters not already admitted by Dr Williams were in the event made by the Panel. But Mr Turner submitted the finding with regard to Head 9(g) was wholly unjustified, based, as it was, solely on the matters contained in 9(e), (ii) and (iii). He pointed out that the same conclusion as that reached by Dr Williams had been subsequently reached by others, including Professor Green and also Dr Rushton who had conducted the second examination. Professor Luthert (opthalmic pathologist) had noted that there were red cells at least in the vicinity of the retina; and Professor Green had only altered his opinion, very shortly indeed before the commencement of the criminal trial, after a pre-trial meeting with Professor Luthert. Dr Parsons held the same view as Professor Luthert. It was at all events, both by the time of the criminal trial and before the Panel, accepted that there was no sufficient evidence of intra retinal haemorrhage (which otherwise could have been an important indication of baby shaking). 115. Mr Henderson submitted that the fact that others had previously formed the same view as Dr Williams does not mean that he had not erred or been inadequate. That is of course true: but it surely is significant in assessing whether Dr Williams – not himself a specialist ophthalmic pathologist – is to be criticised for the conclusion which he drew at the time, and whether he can be said to have been “inadequate” and not to have manifested “the required level of skill”. Attention was also draw to the multiplicity of slides and difficulties in interpreting the slides, as emphasised by Dr Armour. 116. I have some doubts as to this conclusion of the Panel. But it is of note that the Panel did not find that Dr Williams had been incompetent (which is what had been charged): it found that he had been “inadequate”. Further, in a high index of suspicion case, whether or not there was intra retinal haemorrhaging was (as was agreed by all the experts) potentially a critical point and special care was needed. The Panel did have evidence before it (for example, from Professor Berry and Dr Parsons) describing the mistake as a “fundamental” or “significant” mistake. Further, the ultimate evidence to the effect that there was in fact no intra retinal haemorrhage was clear and the point was admitted. On the whole, and while a finding of incompetence could not, I think, properly here have been made and in any case was not made, I conclude that there was evidence before the Panel entitling it to conclude that it was satisfied there had been inadequacy in this regard: and I am not persuaded the Panel was wrong to do so. But also in my view, in the circumstances, such conclusion would not of itself be of very much weight in the overall assessment as to whether there was serious professional misconduct. Head 10 (Spine) 117. 118. It was common ground that subdural haemorrhaging (with bruising or paraspinal inflammation) could also be potentially a key indicator of abuse. There was a considerable quantity of evidence before the Panel (including, but not limited to, Professor Berry and Dr Anscombe and Dr Smith) that there was no subdural haemorrhage of the spinal cord or acute inflammation or bruising of the paraspinal muscles. Mr Turner, while not conceding the point, did not really press any criticism of the finding at 10(g), which in my view was justified on the evidence – indeed Dr Williams was the only person to have found subdural haemorrahaging and no haemorrhaging could be identified on the slides shown to the Panel. (Mr Turner suggested that there may have been other slides, not before the Panel, which did show such haemorrhaging – but that seems to me to be speculation). But Mr Turner strongly criticised the findings of incompetence made under 10(h) and 10(i). It was also said that the slides seen by the Panel were not easy to interpret. 119. But there was a very great deal of evidence to the effect that Dr Williams’ findings on this potentially critical issue (which he alone made) were simply not sustainable. Dr Armour, the defence expert, had also not found subdural haemorrhaging. She while saying there was some evidence of bleeding in the paraspinal muscles (which was not the view of the other experts), said that this would, to her, not have justified a diagnosis of baby shaking. Dr Anscombe was particularly critical of the findings and the reporting of those findings of Dr Williams. In my view, the Panel could properly conclude as it did under Heads 10(g) and (h). Head 11 (Brain) 120. This again was accepted as being a potentially critical feature for any conclusion of non-natural death: another of the “classic indications”, as it was put, of child abuse, along with intra retinal haemorrhaging and spinal haemorrhaging, aside from other external features such as bruising to the baby, fractures and so on. 121. Challenge was made to the primary findings of the Panel to the extent those matters had not been the subject of admissions. It was also pointed out that others to whom the brain had been sent, such as Professor Green, had initially concluded that this case was consistent with baby shaking. However, the finding at 11(b)(i) was supported by, for example, the evidence of Dr Anscombe and Professor Whitwell; as was the finding at 11(b)(iv). The finding at 11(c)(i) was in accordance with the evidence given to the Panel: the histology was, in fact, not referred to Dr Smith until 27 February 1998, after Dr Williams had reported to the police and after Mrs Clark (and Mr Clark) had been arrested on suspicion of murder. Further, the primary finding of the Panel at 11(c)(iii) was borne out by the evidence of, for example, Professor Whitwell, Dr Rushton and Dr Smith. Dr Armour had thought that she could identify one contusional tear; but she could not say whether or not it was artefactual (she also stressing that she was not herself a neuropathologist). Dr Williams, in effect was the only one firmly to have reported the presence of non artefactual contusional tears. 122. Given that was so on such an important matter, there was laid the basis for the evaluative findings at 11(d) and (e). Mr Turner attacked them, however, reiterating that a mistake is not to be equated with incompetence. But while I accept that the finding at 11(a) of itself adds little, the findings taken overall in my view justified the conclusions at 11(d) and (e): which accorded with the overall thrust of virtually all of the expert evidence: and in my view cannot be said to be wrong. Moreover, as the Panel noted in its narrative determination, Dr Williams (in the context of the post mortem examination of Harry) fell to be judged by the standards not of a general pathologist but of a competent forensic pathologist undertaking a complex case of this nature. Head 12 (Ribs) 123. Challenge was made to all the findings under this Head of Charge to the extent they were not the subject of admissions. 124. It was the case that Dr Williams did not make a diagram reference to the observed rib findings (as the exhibited pro forma baby diagram shows) and, as agreed, no photographic record was taken. Given that this was a high index of suspicion case, given the potential importance for the future of any rib injuries (as Dr Williams accepted during his evidence) and given the Home Office Guidelines, the finding at 11(b)(iii) was justified. 125. But Mr Turner again (reflecting his approach on previous Heads of Charge) said that a finding of incompetence as made at 12(i) with regard to Dr Williams’ consideration and treatment of the ribs was not justified. In my view, given the obvious potential importance from the outset of the rib aspects, this was a justified finding by the Panel. It accorded with the views of other experts: and it is the case that the failure properly to document the rib injuries at the time of the post mortem examination or to report on the histology of the samples taken did (foreseeably) give rise to significant difficulties thereafter and at the criminal trial. 126. In my view, here as elsewhere, it is not necessary expressly to rehearse further the minute details of the points advanced here on behalf of Dr Williams. The Panel could properly conclude as it did and had ample evidence on which so to conclude. Likewise, it could properly conclude as it did under 12(j): although in the scale of things, this latter charge does not seem to add very much to what has gone before, and really reflects them. There were the guidelines to follow; Dr Williams himself more or less expressly conceded there was such an obligation; and there was the proved failure to report on the histology samples: indeed it seems that a report was only finally produced by Dr Williams, on request by other experts, at the outset of the criminal trial. That is not impressive. Further, as Dr Anscombe had reported: “forensic pathologists are well aware of the intense scrutiny under which their findings will be put as a matter of routine and should document their findings accordingly”. Head 13 127. As a matter of objective fact, by reference to what in the event happened, this finding is unassailable. Taking the position at the time of the post mortem examination, it is also unassailable in view of the findings, individually and collectively, made by the Panel on the preceding Heads of Charge. Moreover, as Dr Anscombe (among others) had noted the – wrong – findings of Dr Williams on retinal haemorrhages, contusional tears in the brain and subdural haemorrhage on the spinal cord were planks of evidence for his ultimate conclusion. Mr Turner’s further suggestion that, in connection with Head 13, it behoved the Panel to “rule upon it separately and in connection with each and every paragraph and subparagraph of Heads of Charge 9 to 12 …” I regard as unrealistic, and more designed to create a legalistic Grand National for the Panel than to achieve practical justice. Altogether more cogent, in my view, was his submission that Head of Charge 13 was really a “gather up” charge – which Mr Henderson did not really dispute – and was not much more in effect than a summation of the previous charges, and so added little. Heads 14 to 20 (Microbiology) 128. It was this group of charges which was the subject of the second tranche of written submissions placed before the Panel on 26 May 2005. These charges also relate to the non-disclosure issue which, in point of fact, had been determinative of the outcome of the second Court of Appeal hearing. 129. Mr Turner made a number of observations by way of overview before dealing with the findings on the specific Heads of Charge adverse to Dr Williams. He forcefully reiterated all the points summarised at paragraph 97 above and which, I accept, are important points to be borne in mind throughout. He went on, in effect, to submit as follows:- 129.1 At the times in question, it was a widely, and respectably, held view that microbiology would rarely be of assistance in determining the cause of death in a context such as the present. By way of example, he cited from the text book “Paediatric Pathology” 2nd edition (1989) by Professor Sir Colin Berry where it is said at page 33: “Although many pathologists can cite an occasion where post mortem bacteriology has been useful, these occasions are rare and the taking of routine swabs represents a waste of resources …”. In an initial response dated 13 April 2004 Professor Jem Berry had said: “I was not surprised that [microbiological] results were not included in Dr Williams’ report because forensic pathologists do not usually include microbiology in cot death reports, in contrast with paediatric and general pathologists … I do not know whether this is because they do not do the tests or because they do not include results which they consider to be normal”. Mr Turner also again referred me to CESDI studies and PABFOP Audit Reports to reinforce his point and to show, for example, that microbiological results were commonly at the time not sought (or discussed) at all. 129.2 129.3 Dr Williams’ genuinely held view at the time (and to this day) was that the microbiological and biochemical reports which in fact were obtained with regard to Harry were of no relevance or assistance in establishing the cause of his death and lent no support to a view that he had died from natural causes. That was, it was submitted, a reasonably and responsibly held view. The opinion of almost all the experts was that death arose through non-natural causes and that they would have given the cause of death as “not known” or “unascertained”. Further, even Professor Morris who, based primarily on the microbiology results, had thought - perhaps alone of the experts - that they indicated that death was probably due to natural causes, had expressed concern, in the aftermath, at Dr Williams being made a scape-goat. Professor Whitwell had observed that for pathologists differences of opinion were part of their working lives. 129.4 Neither Dr Wills nor anyone else had alerted him to the possibility of the microbiology being relevant to the cause of death. 129.5 129.6 Consequently, it was submitted, Dr Williams is not be castigated as incompetent for failing to disclose or report upon the microbiological and biochemical reports when his view (both honestly and reasonably held) was that they were not relevant. Further, at no time did the police or any defence lawyer or any other expert ask for production of the microbiological and biochemical results for Harry, even when they would or should have realised they would have been taken: see, for example, the section 9 witness statement of Dr Gilbert (consultant paediatrician at Macclesfield District General Hospital) dated 30 January 1998 which had referred to samples being sent off for microbiological testing; the disclosed Accident and Emergency notes which referred to such samples; and other occasions during the course of the criminal proceedings, including committal and trial, when the existence of such samples and reports could have been noted. 130. The rhetorical question Mr Turner thus posed was: what was there to cause Dr Williams to think that the microbiological results (including their reference to SA) had significance or at least to think that others might think they had? He draws attention, for example, to the report of an expert such as Professor Eykyn, who gave evidence before the Panel, to the effect that the microbiology with regard to Harry could properly be regarded as irrelevant to ascertaining the cause of Harry’s death. That also in substance was the view given in evidence of, for example, Dr Wills, who had written the letter of 3 March 1998. Attention was drawn to the lack of evidence indicating any other sign of infection or prior illness. Attention was also drawn to observations of the kind made by Professor Jem Berry that at that time microbiology had not been a major source of contention in similar legal cases. Further, witnesses such as Dr Rushton and Professor Morris gave evidence that it was reasonable for Dr Williams to place reliance on Dr Wills. These were powerful points and powerfully made. But I simply do not think that they provide the complete answer for which Mr Turner was contending. In my judgment - I will come on to refer to the view of the experts to this effect – what was done (or, rather, not done) here with regard to the microbiological and biochemical tests has to be put in context. This was a very high index of suspicion case, involving a second sudden death of an apparently healthy baby from the same family. A murder charge might (as in the event it did) result. Family care proceedings for any subsequent child of that family also might ensue. Moreover, Dr Williams had accepted that he had not inadvertently forgotten or overlooked the microbiological and biochemical reports: he agreed that he had taken them into account in making his ultimate post mortem report. It is, I think, troubling that, by forming a personal opinion, albeit a reasonable opinion, that a report is irrelevant as to cause of death, a pathologist can in effect “self-certify” such report as entirely irrelevant for the purposes of either comment or disclosure in potential criminal proceedings. As Mr Henderson put it, therefore, it can be accepted that it was a reasonable view that infection played no part in Harry’s death (the view of Dr Williams, shared by other experts). But it was not, given the circumstances and the context of a murder case, reasonable thereafter to conclude that no one else could think that infection possibly might have played a part in Harry’s death. 131. As to the fact that no one else sought to inquire about such reports, that is indeed a point to be made. But it can legitimately be said (as was pointed out by a number of the experts) that that was so just because it was assumed, in view of the lack of any discussion in the post mortem report of Dr Williams and lack of reference by him to such reports thereafter, that they were of no relevance. In the present case the microbiological reports (as is agreed) showed a highly unusual or abnormal feature in the undisputed widespread presence of SA, in pure form: accompanied also by evidence of polymorphs and, biochemically, increased protein level. Moreover the unusual microbiological features concerning the SA were highlighted in Dr Wills’ contemporaneous letter to Dr Williams of 3 March 1998; and a degree of caution was raised by his contemporaneous statement of opinion in that letter that, in the absence of any localised inflammatory response, it was “unlikely” that the organism contributed to the death of Harry. Even set in the context of the observations of (for example) Professor Sir Colin Berry and Professor Jem Berry referred to above, that gives rise to the prospect of this possibly being one of those rare and unusual cases calling for consideration of the microbiology. 132. As Mr Turner accepted, honestly doing one’s best may not be enough in such circumstances. The duty of disclosure in such a context (even where the pathologist himself may think that microbiology does not assist) and the potential relevance for criminal proceedings as a possible cause of death, in the light of the duty being ongoing, was emphasised by very many of the experts whose evidence was before the Panel, in their written reports and/or in oral evidence: Dr Anscombe, Dr Rushton, Professor Jem Berry, Professor Morris and Professor David. In his report, for example, Dr Anscombe said that in failing to refer to the microbiological findings in the original post mortem report or subsequently Dr Williams’ performance fell below an acceptable standard. In her written report dated 20 January 2005 Dr Armour stated: “Dr Williams failed to mention the microbiology results in the cases of Harry and Christopher Clarke. This is below an acceptable standard … . His main failing is not to mention in any way the microbiology results in the post mortem report of Harry Clark. This is below an acceptable standard.” She went on to say the disclosure of the microbiology was more complex than appreciated and: “… is not only the responsibility of the Crown Pathologist. Their responsibility is undoubtedly to state the presence of the results in the report, thereby alerting others to their existence …”. In cross examination (where she repeated that she would not herself have specifically mentioned the presence of SA and that there was no basis, in her view, for giving a report certifying death through natural causes, saying that it should have been given as “not ascertained”) she maintained that. She agreed that “there was no room for debate” that the microbiology results might arguably assist the defence and that “in my opinion it was Dr Williams’ duty to mention the microbiology results”. She also agreed (“Yes, I would have to say yes”) that as what were called the “planks” of evidence were knocked away – the intra retinal haemorrhages, the contusional tears, the subdural spinal haemorrhaging – there was a duty on Dr Williams to revisit the case of Harry as to cause of death. That was a view which accorded with that of other experts such as Dr Anscombe, and was accepted in oral evidence by Dr Williams himself. 133. As Mr Henderson submitted, in the context of a murder trial (especially where the scientific evidence was central) possibilities are potentially crucial. Dr Williams with all his experience must be taken in general terms to have known that, even if he did not at the time know the leading legal authority in the form of R v Ward [1992] 1WLR 619, especially at p.674: “An incident of a defendant’s right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous …” Dr Williams in cross examination accepted that in retrospect. His explanation was, of course, that at the time he simply had not seen the microbiological results as significant. 134. Moreover, the Panel was clearly, given the context, entitled to conclude that, while the expert evidence was divided as to the potential significance of the microbiological results in terms of certifying a cause of death (only Professor Morris, as I have said, being prepared to go so far as being prepared positively to certify death through natural causes in the form of infection), the potential significance of such microbiological results lay in raising the possibility of natural death; and that could potentially assist the defence at the criminal trial. 135. Against these observations I turn again to the relevant Heads of Charge. The relevant factual allegations raised in Heads of Charge 14, 15, 16 and 17 were all admitted. Heads 17(b) and 17(c) 136. Although this finding under 17(b) was challenged by Mr Turner it seems to me, given what I have said, that this finding was plainly open to the Panel. Professor Eykyn may have thought the presence of the pure SA, as identified in the microbiological reports, was of no relevance in support of a contention that death was through natural causes. But in terms of possibility all the other experts considered that such reports could raise an uncertainty, as the Panel found – a possibility also raised as a matter of narrative comment on the microbiological results by Dr Wills with Dr Williams in the letter of 3 March 1998. (It is a valid point to make that Dr Williams had no narrative commentary, as opposed to the results themselves, to alert him to the possible significance of the raised protein level or the presence of polymorphs. But he did have those results and made no mention of them; and it seems moreover, from the Panel’s findings that it was the microbiological results, particularly with regard to the abnormal presence of SA, which was considered by the Panel to be the main point of focus.) As the Panel noted, Dr Williams had accepted as much in his oral evidence, even if that was him speaking with the benefit of hindsight. As a primary finding, the Panel was entitled to be satisfied on this point. 137. The Panel having made that finding, it seems to me clear that it was also entitled to make the finding that it did under 17(c). Indeed, it more or less follows; and cannot be controverted simply by a reiteration that Dr Williams’ (reasonable) personal belief was that the microbiology was of no assistance in showing the cause of death. Such conclusion of the Panel accords with virtually all the expert evidence adduced before the Panel on this, given in particular the unusual presence of isolated SA. It also accords with the – admittedly rather generalised – Home Office Guidelines on the duties of Home Office pathologists with regard to disclosure. As Mr Henderson submitted, and I agree, the issue here was not as to the actual significance of the microbiological results (in the sense of whether or not they helped prove the cause of death); the issue was as to the potential significance (in the sense of whether or not they raised an uncertainty as to the cause of death). 138. Likewise, in my judgment, the Panel was entitled to make the finding it did under 17(d), which accorded with the evidence. I would not myself put any emphasis on the rather ambiguous words “and/or chose” – the emphasis should be on the wrongful “failure”. The Panel must itself have so proceeded, not least because of its express finding that there was no bad faith. Head 18 139. These findings again seem to me to be consistent with the findings under Head 17. It is no answer to the finding under 18(b) to say that Dr Rushton and Professor Emery did not ask to see the microbiology or biochemistry results. As Dr Rushton said, he assumed from the lack of reference that nothing relevant had been found. Generally, as I have said, virtually all the experts (as did Dr Williams himself) agreed that there was a continuing duty of disclosure: the more so as certain of the planks of the prosecution case, and conclusions expressed in the initial post mortem reports – as to contusional tears, intra retinal haemorrhage and subdural haemorrhage – fell away. In my view, there were all these occasions when the microbiology results might, and as the Panel was entitled to find should, have been mentioned by Dr Williams but were not: this all flowing from Dr Williams’ unrevised and unrevisited assumption that the reports were not relevant. Heads 19 and 20 140. 141. For the reasons already given by me, and consistently with the Panel’s previous justified findings, these finding were also justified and in accordance with the evidence. So far as the jury notes are concerned Mr Turner (as he had done with regard to the committal proceedings before the magistrates) took me through the transcripts with great care. He submitted that the jury questions were concerned with samples of blood for Harry, and the note had not been directed at other samples sent off for microbiological or biochemical testing. He submitted that, in the court context in which Dr Williams was being questioned, it was understandable for Dr Williams not to link that with the microbiology and biochemical results. In my view, however, the Panel was entitled to conclude otherwise. The real reason Dr Williams did not so refer to those reports at any stage during the questioning was, as the Panel was entitled to conclude, not because the questions were not sufficient to include them but because the mindset of Dr Williams was that there was nothing relevant to which reference need be made. Head 22 142. For like reasons, the Panel was entitled to make these findings, to the extent not admitted. But, correspondingly, I would agree with Mr Turner that this does not overall add much to the overall case against Dr Williams. Conclusion on Findings of Fact 143. I conclude that all the findings of fact were open to the Panel. I reject the arguments to the effect that they were wrong, notwithstanding my reservations with regard to Head of Charge 8(a), as worded, and with regard to Head of Charge 9(g) and notwithstanding that, as I have indicated, some of the charges are either “sweeping- up” charges or charges which add little to the overall complaint. Serious Professional Misconduct (Ground 7 and 8) 144. In many ways this seems, to me at least on reflection, to be a key point on this appeal: although clearly the finding of serious professional misconduct flows from the findings of fact previously made. 145. Again, I bear in mind that all the general observations, much emphasised by Mr Turner and as set out at paragraph 97 above, were and are in point at this stage. As he also said, with force, there are cases, known to most professionals at some stages in their careers, where everything goes wrong. The core submission of Mr Turner, however, perhaps was that while there may have been errors (with hindsight), nevertheless given that it was accepted that Dr Williams honestly and reasonably held the view that the microbiological and biochemical results cast no light on the cause of death of Harry he is not to be adjudged guilty of serious professional misconduct by his failure (conditioned by that belief) to comment on or disclose those results. Further, the adverse findings of the Panel with regard to the conduct of the post mortem examinations of Christopher and Harry were not of themselves, he submitted, 146. 147. 148. enough to justify a finding of serious professional misconduct. In any case, the Panel had expressly reached such a conclusion as to serious professional misconduct taking the errors and omissions found proved collectively: see paragraph 22 of the determination. Accordingly, he said, if the non-disclosure aspects could not stand as constituting serious professional misconduct, then the other aspects could not suffice of themselves. In my view, at this stage of the argument, it is important that I bear in mind that I should have respect for the conclusion of an expert Panel appointed to represent and enforce the clinical standards to be expected and which had the benefit of hearing all the evidence and submissions deployed before it. That this is so is confirmed by a number of authorities: see for example, Ghosh v General Medical Council [2001] 1WLR 1915 at p.1923 (per Lord Millett): and the Meadow case at paragraph 197 (per Auld LJ). It is true that it was said in Meadow that it will be a “rare case” in which a person should be held to be guilty of serious professional misconduct in the absence of bad faith. And here Dr Williams was exonerated of any complaint of bad faith. But it is well established in this context that gross or culpable negligence can, where appropriate, constitute serious professional misconduct: see, for example, Preiss v General Dental Council [2001] 1WLR 1926 at p.1936 (per Lord Cooke of Thorndon). As Sir Anthony Clarke MR said in Meadow, “the lapse in question must be serious indeed before the conduct in question can be regarded as serious professional misconduct … All depends upon the circumstances of the particular case.” In Raschid v General Medical Council [2007] 1 WLR 1460; [2007] EWCA Civ 46 Laws LJ referred (at paragraph 26 of his judgment, a judgment with which the other two members of the Court agreed) to “the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal.” That was said in the context of an appeal on sanction: but it is clear that Laws LJ was speaking in the context of Section 40 appeals generally and is to be taken as including a tribunal’s judgment on whether or not there was serious professional misconduct. In the present case the Panel set out its reasons for finding serious professional misconduct fully and clearly. It was critical of Dr William’ attribution of the cause of death of Christopher as due to “lower respiratory tract infection” and of the failure to indicate “how slender” was the evidence on which it was based; and critical of the failure to discuss other noted injuries. As to Harry, the Panel was critical of the attribution of death to shaking, when many of the key findings made to support such conclusion could not be sustained. As it said: “some other experts initially agreed with some of your findings but you alone were mistaken in respect of all these key findings”. Taken together, and in the context of a potential criminal trial, the Panel could properly conclude that these could not be accepted as “understandable mistakes”. 149. The Panel was entitled to be critical, reflecting its findings of fact, of the sustained failure to refer to, or disclose, the very unusual microbiological results relating to Harry (see paragraph 13 to 17 of the determination). The Panel was entitled to consider that Dr Williams had, in context, accepted the “highest level” of forensic pathological responsibility and had put himself in a position where he might have a “pivotal role” in a criminal trial. 150. In my view, on its findings the Panel was entitled to conclude that this was not an isolated lapse but a catalogue of uncorrected and “formidable” errors of observation and judgment over a three year period; and also to conclude that the potentiality for serious consequences could not be disregarded. There being serious professional misconduct, the mitigation of a previous unblemished career was properly held not to displace such a finding; and the reasons given for such a finding were amply sufficient. 151. 152. In my view, given all this, the conclusion (at paragraphs 22 and 23 of the determination) that there was serious professional misconduct was justified. I am not persuaded that it was wrong. I add that I reach that conclusion bearing in mind my reservations as to certain of the findings of fact as mentioned above and bearing in mind my view that some of the Heads of Charge are “sweep up” charges and/or add little to the overall central criticisms. But these are of relatively little moment. Taken overall, the Panel’s conclusion as to serious professional misconduct, having regard to the determination, remains justified. Sanction (Ground 9) 153. Nor am I persuaded that the sanction imposed was wrong. It is, indeed, consistent with and proportionate to the findings of fact and the assessment of the serious professional misconduct involved. (It is to be noted also that the Panel thought there were “unresolved concerns”.) The Panel had full regard to all the mitigation advanced. It is to be observed that the condition imposed in no way placed a bar upon Dr Williams’ entitlement to continue in his practice as a consultant general histopathologist. Conclusion 154. In my judgment, this appeal fails on essentially every ground advanced. There was no procedural unfairness giving rise to injustice; nor were the findings and conclusions of the Panel wrong. 155. I should mention one or two other points. 156. As already stated, Dr Williams gave an undertaking to the Court on 17 February 2006 not to undertake any Home Office pathology cases or Coroner’s post mortem examinations (whereas, in the ordinary way, the lodging of an appeal would prevent any condition on registration as imposed by the Panel from coming into immediate effect). Thus he has by reason of the undertaking been precluded from so acting. That would seem to give rise to a serious injustice to Dr Williams if the full three year condition now becomes activated in addition. Mr Henderson pointed out, however, and Mr Turner agreed, that Dr Williams’ potential remedy is to apply for variation of the sanction under Rule 37 of the Conduct Rules. If he does so apply, then I think that it can confidently be expected that the Panel (whose ultimate decision, nevertheless, it remains, having regard to all the circumstances) would have regard to the undertaking that was given in the interim and the consequences to Dr Williams as a result. 157. The final point is this. The Panel had expressly and rightly stated that its determination was not concerned with why or how Christopher and Harry Clark died (a matter on which views have differed and do differ). No more can this judgment be concerned with that. Just why and how Christopher and Harry Clark came to meet their deaths will, presumably, now never be known. ***** Annex 1 Findings of Fact Annex 2 Determination on serious professional misconduct and sanction.