A Midland mother who lost a baby daughter and whose other little girl was brain-damaged after treatment in experimental breathing tanks yesterday won a victory in her fight to have disciplinary action taken against the paediatricians involved.
Court of Appeal judges ruled the General Medical Council should review its decision to reject complaints from Carl and Debbie Henshall over specialists Professor David Southall and Drs Martin Samuels and Andrew Spencer.
The judges ordered a further hearing to decide how their ruling can be put into effect when Prof Southall and his colleagues are expected to be legally represented.
The Henshalls, from Clayton, Staffordshire, claimed the tanks were linked to the death of their two-day-old daughter Stacey and to the brain damage to their other child, Sofie.
They called on Lord Justice Auld, Lord Justice Sedley and Lord Justice Jonathan Parker to quash the decision not to order a disciplinary hearing.
Philip Havers QC, representing the parents, claimed at a June hearing the GMC acted unfairly in failing to disclose to the mother Prof Southall's response to her complaints.
He said the Preliminary Proceedings Committee, which recommends whether or not to refer matters to the Professional Conduct Committee, failed to give proper weight to the evidence and to apply the correct test for referral.
The three specialists had worked on the hospital's trials into the controversial CNEP treatment - negative pressure chambers used in the early 1990s to try to help sick, premature babies breathe without the need for traditional ventilation.
The couple allege the health specialists did not give properly informed consent to medics for their girls to be placed into the CNEP tanks.
The action comes the week after Prof Southall was found guilty of serious professional misconduct and banned from child protection work for three years by the GMC over an unrelated matter.
The paediatrician had told police that Cheshire lawyer Steve Clark had murdered his two sons, basing his opinion on a television documentary.
Mrs Henshall gave birth to her two daughters in February and December 1992 at the North Staffordshire Royal Infirmary, both being born prematurely and receiving CNEP treatment as part of a clinical trial designed and overseen by Prof Southall and Dr Samuels.
Dr Spencer was the consultant paediatrician with responsibility for children recruited to the CNEP trial in north Staffordshire.
The parents claim they had not known their daughters had been given the treatment until December 1996, and in May 1997 used that information to make allegations of serious professional misconduct against the three men.
They maintained the doctors should not have undertaken the treatment, that they and other parents whose babies had been similarly treated had not had an opportunity to make an informed choice about it and they had not been told of the risks.
Prof Southall only agreed to respond to the complaints on condition that his response would not be forwarded to the Henshalls.
The PPC decided not to forward the cases to the conduct committee because there was "no real prospect" of proving the doctors' actions were serious professional misconduct.
The mother's application for a judicial review of that decision was refused by a High Court judge and that ruling has now been overturned by the Court of Appeal.