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Bearing Good Witness – Consultation In 2004, Ministers Dr Stephen Ladyman MP and Mrs Margaret Hodge MP commissioned the Chief Medical Officer's report Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases. The report, which makes 16 proposals, was launched for a period of public consultation, from 30th October 2006 - 28th February 2007. The following comments were made in respect of this period of consultation. Comments on behalf of the British Association for the Study and Prevention
of Child Abuse and Neglect A difficulty in commenting on the proposals arises from the fact that the document is based on a wrong premise and identifies the wrong problem and as a result proposes remedial measures that are unlikely to bring the intended benefits. This document attempts to summarise the reasons for the current crisis and put Report within a context. In her Parliamentary statement on 17 June 2004, the Minster for Children, Young People and Families indicated that she had arranged for the CMO to carry out an Inquiry into how best to ensure the availability and quality of medical expert resources in court proceedings because there was an “… acute problem … in finding experts of high standing to give medical evidence in proceedings …” She did not explain why this situation had arisen nor did she address the more acute problem. The unavailability of expert witnesses in proceedings is a symptom of the widespread reluctance of paediatricians in particular but also other professional staff to be involved in child protection work in any respect. That reluctance was and is having a serious detrimental effect on the current arrangements for the protection of vulnerable children generally and will ensure that the narrower area of interest, that of experts being appointed for a specific purpose, will be come even more difficult for want of availability of sufficiently experienced professionals. The 8th Bullet Point in the Executive Summary sets out the factors that in the opinion of the CMO deter doctors from being expert witnesses. - Few training programmes. Of these only the last is in reality having a significant impact and that problem is understated in the document. The genuine and justified fear also relates to NHS Trust disciplinary processes, Ombudsman Inquiries and the attitude and approach of those within the Commission for Health Care Regulatory Excellence. The deterrence arises not only from the possibility of complaint but from the ease with which campaigning groups organise and target individuals and the willingness with which those responsible for the administration of the complaints processes engage with those campaigners and complainants. The very real perception is that the processes are unjustly applied and unfairly focus on and discriminate against those who give evidence from a child centred approach favouring adult interests, particularly those reflected in the activities by the campaigning groups. Few professionals would be willing to engage in areas of practice when they risk having their names, addresses, personal affairs and defamatory statements about then being published on websites set up for the purpose. The RCPCH Report: An investigation into the nature and impact of complaints made against paediatricians involved in child protection procedures (RCPCH January 2007) confirms this to be the case and we rely on the contents as evidence of the strength of feeling among professionals about the management of complaints processes by those responsible. The three cases of Patel, Clark and Cannings are identified as giving rise to “growing public unease about miscarriages of justice arising from
tge quality and validity of evidence given by medical expert witnesses
in the courts.” The outcome of these cases did not justify that concern. What gave rise to concern was the reaction of the media, encouraged by government and the disciplinary bodies and a determined campaign by groups intent on undermining the reputations of highly regarded professionals. It was the unjustified and uncorrected reaction to the cases that caused the crisis – not the decisions or judgments in the cases themselves. It follows that many of the processes put in place reflect that overreaction and have caused or contributed to the crisis that is adversely affecting the protection of vulnerable children across the country The reaction of the Attorney General, Solicitor General and Minister for Children, Young People and Families following the Cannings judgment published in January 2004 was immediate and far reaching. It only later became clear due to Munby J’s determination to explore the circumstances what had been the extent of political influences and part played by the Solicitor General’s sister.(See Re B (2004) EWHC 411 (Fam)) The reaction of ministers fuelled the media hype and created the impression of widespread injustice and incompetence within the family courts jurisdiction. The Circular ((LAC 2004) 5) was issued knowing that two cases were pending before the Court of Appeal (Civil Division) that would consider the impact of R v Cannings on family court cases. Mr Justice Munby’s judgment in Re B exposed the actions of individuals within the DFES who had endorsed court papers disclosed to Ministers and a large number of MPs in contempt of court with “expedite verdict as will give a civil case judgment on which we can base review.” That is, it would justify the review of civil court cases that it had already been decided to undertake. In the event, in the cases of Re LU and LB (2004) EWCA Civ 567 the President of the Family Division made clear the limited impact of the Cannings Case. She commented that “There may have been a tendency in some quarters to over-estimate the impact of the judgement in R v Cannings in family proceedings.” and “Given a similar background to that in R v Cannings a judge would be required to ask himself which of two possible explanations, human agency or unascertained natural cause, is the more probable.” The remainder of the judgment made clear that Cannings had very little impact on the Family Court Jurisdiction. Had Ministers waited for this judgement the inappropriateness of the review of 30,000 public law child care cases would have been apparent. In the event the review failed to establish what then political climate expected – it did however inappropriately create the impression that there was widespread injustice caused by medical witnesses. The three high profile cases continue in the Consultation to be linked. Is this justifiable? Do they give cause for concern regarding the contribution of medical witnesses? Patel The Court of Appeal insisted in the Cannings judgment that there were no issues of principle arising from the acquittal of Patel and commented “ …on the evidence the jury was not sure of guilt. …. We emphasise that is all that is ever decided by a “not guilty verdict”. Nowadays, we read and hear much about a new concept, “found innocent”: that is not a verdict known to the law.” Clark Mrs Clark’s conviction was quashed because of the failings and hence credibility of Dr Williams the pathologist in the cases involving the two dead children which were sufficient to create a doubt – there could be no retrial as the bodies had been cremated and so were unavailable for further examination. He was not an expert instructed in the case in the sense used in the CMO report – he was a practising pathologist involved in the cases throughout. During the GMC Fitness to Practice hearing concerning Williams Dr. Alison Armour, Home Office Pathologist gave evidence that “By the time Dr Williams came to do (Harry Clark’s autopsy) the evidence he was dealing with a double homicide was … overwhelming.” This had been the view of the court of Appeal when considering and dismissing Mrs Clark’s first appeal against conviction. The Court then refused to accept that the evidence of Professor Meadow’s in relation to statistics justified quashing the conviction. In the second successful Clark appeal, the Court of Appeal in vain attempted to prevent any implication that there was reason to be concerned about other cases “We are aware that there is public speculation as to whether other convictions of mothers for killing their babies where the babies died sudden deaths, are similarly unsafe. The matters to which we have referred are directly referable only to this case.” The Court of Appeal in Cannings repeated this assertion • “… the observations on the facts in the CACD in that (the Clark) case were case-specific, and not otherwise of general application to the present appeal.” Cannings Mrs Cannings’ conviction was quashed because • “…we are quite unable to reject the realistic possibility that in the absence of some compelling piece of evidence, whether specialist or extraneous, suggestive of deliberate infliction of harm, there may have been a genetic cause, as yet unidentified, for the deaths and ALTEs…” Other incidents within the extended family therefore ceated a doubt. This did not mean that medical opinions supporting the deliberate harming of the various children who died was wrong or to be criticised and the Court did not do so. The court of Appeal itself clearly became concerned at the unintended results of the judgement, including many cases, civil and criminal being discontinued, and the many appeals fuelled by the Attorney General’s reaction to the judgment. The Court took the earliest opportunity in R v Chaha’oh Niyol Kai-Whitewind (2005) EWCA Crim 1092 to correct the inappropriate overreaction to it The Court described the manner in which Cannings had been interpreted as “overblown” and effectively confined the decision to the peculiar and specific facts of Cannings itself Donna Anthony This case referred to in the Consultation is a useful illustration of how the misunderstanding of the implications of Cannings has impacted. It is cited (as it is in the Consultation) as a case involving injustice. The Court of Appeal reluctantly quashed the conviction and remarked that unlike the Cannings case there was “cogent and disturbing” evidence in addition to the disputed medical evidence. The Appeal was allowed on a “narrow basis”. A retrial was “narrowly rejected” despite much of the evidence being still available because the case was old and the appellant’s mother who gave evidence on her behalf had since died. The Court concluded that it was “… not without some hesitation, we have decided not “to order a retrial”. However, it was only the Court of its own motion that considered these issues since the Crown had not contested the appeal nor invited a retrial – an indication of the impact of the atmosphere created around these issues, with responsibility being laid at the door of medical witnesses Discriminatory Disciplinary Proceedings The discriminatory nature of action against professionals has been clear to the medical staff in particular and demonstrated to them a disinterest in children’s welfare within these processes. How many medical experts who have given evidence for the defence or parents in public law cases and have been found wanting have been disciplined? Paterson is referred to in the Consultation Document. He had been giving evidence in a manner criticised by the High Court for over 15 years before action was taken to erase him from the medical register in 2004. In this period he had distorted decision making in and out of court and ensured that children very seriously injured were returned to households in which the injuries occurred. Courts had criticised his practise and he carried on without altering his approach. It could certainly not be said that he acted in good faith. The Minister for Children, Young People and Families and the Attorney General refused a request by BASPCAN that the cases he had influence over should be reviewed, despite the ease with which they could be identified (in contrast to the hasty scatter gun approach of the Review of cases required on the basis of what is seen now to have been a misunderstanding of the Cannngs judgment.) Some witnesses prominent for the defence in the high profile cases have since been seriously criticised in subsequent cases. In Re U (2005) Professor D. was criticised in the following stark terms by the President of the Family Division “We do not need to detail all the avoidable problems caused by the disregard of the court’s plain intention to control and manage the case, particularly on the part of the applicant’s solicitor and Prof. D.” Prof. D questioned the qualification of experts and validity of opinions and attacked shortcomings of research studies published by Prof Sir Roy Meadow and Prof. Southall., none of which was accepted. “Viewing (his) reports together there emerges a distinct impression of a busy specialist who never quite finds the time to complete a task.” “Crucial to (the mother’s case) was a thorough, complete and convincing expert opinion. It might be said that Prof. D’s contribution lacks any of these characteristics.” Prof D. based his new diagnosis “totally on the history of the parents” taken over 5 hours which contrasted with medical records and findings by two high court judges that the parents were unreliable and dishonest. The President commented that “It is thus apparent that the edifice of Prof. D’s opinion is built on sand rather than rock.” Had Professor D’s evidence been accepted a child would have been returned to a household in which she would have been at risk of serious injury or death. No disciplinary action was taken against Professor D. and on the contrary the Attorney General has indicated that he has continued to use him as a source of advice during his reviews of cases – reviews embarked upon before the Court of Appeal corrected the misinterpretation of Cannings. Dr R., was also prominent in giving evidence for the defence in the high profile cases and contributed to the inaccurate perception generated of a dogmatic approach generally within paediatrics. His evidence in Cannings included an influential assertion that the “ … current dogma is that an unnatural cause has been established unless it is possible to demonstrate an alternative natural explanation for these events.” He also gave evidence for the defence in R v Chaha’oh Niyol Kai-Whitewind (2005) and attracted the following comment from the Court of Appeal 61. “ Dr Rushton's evidence on this topic exemplified what the judge in his summing up described as a "number of unfortunate difficulties" with his evidence. Despite the emphasis on toxic shock syndrome, no earlier mention had been made of it in his report, and indeed Professor Risdon was not asked any questions whatever on the topic during cross-examination. 62. Another problem arose from Dr Rushton's evidence about the size of Bidziil's thymus, which led him to tell the jury that evidence recently to hand from the Netherlands had suggested provisionally that an enlarged thymus may have some impact on the immune system of the infant. However when he was cross-examined, he observed that his remark on the subject was an aside, not intended to apply to Bidziil's death. 63. He was then asked his source for the aside. Initially he said that he could not remember the journal in which he had found it. In the end it turned out that he had never read the article in question. He had read a summary of it in a medical newspaper, and he was unable to discover the location either of the newspaper or of the journal itself. 64. Then again, in the context of the notorious case of Sally Clark, he referred to botulism and tetanus, later underlining that he was not saying that either botulism or tetanus had any relevance to Bidziil's death. They were used only for the purposes of illustration. 65. There were, indeed, a number of features of Dr Rushton's evidence which would have entitled the jury to approach his evidence with legitimate reservations.” Dr R. faced no disciplinary action. In July 2004, HHJ Selwood was convicted for possession of pornographic images of children. Selwood was permitted to retire early on grounds of ill-health. BASPCAN asked the Attorney General to carry out a review of those cases over which the judge had had influence. The Attorney General declined. The following are examples of decisions by the GMC in cases not involving the protection of children. - Doctor failed to take action in the Shipman case despite
being alerted by other professionals. - 5 doctors convicted for possessing child pornographic material. - 600 children misdiagnosed by doctor. These cases are inevitably compared to the treatment of Professors Southall and Meadow who it was accepted had acted throughout in good faith. Southall was prohibited from practise in child protection for 3 years by the GMC. He had acted neither as examining doctor nor court appointed expert. This sanction was imposed for reporting his concerns confidentially to the proper authorities and failing to interview the parents before forming a view. In relation to the latter finding the Panel relied on the evidence from Professor D. who criticised Southall for not adopting the practise for which he was subsequently seriously criticised by the President of the family Division) see Re U above). The Commission for Health Care Regulatory Excellence appealed to the High Court seeking Southall’s erasure from the register. During the case Counsel for the Commission referred the judge to an extract from one of the huge number of testimonials sent in Southall’s support. The extract indicated that that Southall was a man who put the interests of children before his own and Counsel commented that that was “the problem.” The treatment of Meadow has of course had a significant impact on the willingness of paediatricians to expose themselves to similar risks. The GMC Fitness to Practice Panel on 15 July 2005 made clear the extent and limit of their inquiry “…“This Inquiry has been limited solely to your failures in your erroneous application of statistical data in your role as an expert witness” “If, as you have said repeatedly, you were not a statistician this should have been made clear to the Court: instead, you spoke authoritatively outwith your own field of expertise”. The Court of Appeal in the First Clark appeal considered and commented on this – “No-one would know better than Professor Meadow that this important evidence as to whether these deaths were unnatural lay in the physical finding post-mortem, in the account of the last hours of the infants, and in the evidence and credibility of the parents - it certainly did not lie in statistics. And it is clear from reading his evidence that his conclusions were firmly based on that medical and circumstantial evidence, as we would expect.” The Fitness to Practice Panel found it unnecessary to consider the transcripts of the proceedings that had led to the complaint against Meadow and found serious professional misconduct. It ordered Meadow’s name to be erased from the Medical Register. Collins J. allowed the appeal against that finding commenting “It is difficult to think that the giving of honest albeit mistaken evidence could save in an exceptional case properly lead to such a finding.” “I need say little about the sanction. It was unnecessary since the appellant had retired from clinical practice. It was imposed in the teeth of the many testimonials to him and the knowledge that he had made a real contribution to paediatric medicine.” “The FPP referred to the seriousness of his 'undermining of public confidence in doctors who have this pivotal role in the Criminal Justice System'. If the full facts are taken into account and the media campaign based on a lack of knowledge of all the circumstances is ignored that comment is unjustified. And to say, as the FPP did, that his conduct was 'fundamentally incompatible with what is expected by the public from a registered medical practitioner' approaches the irrational.” These comments which amounted to an assertion of vindictive approach by the GMC influenced inappropriately by the media echoed the view of the majority of paediatricians who had considered the case. They see no evidence however of any action against or criticism of the GMC for this improper approach or any suggestion that the practice and attitude will change. No inquiry into the conduct of those responsible. The GMC appeal against the Collin’s judgment gave the opportunity for the Court of Appeal to consider the GMC approach to the perceived misdeameanour. (Meadow v GMC (2006) EWCA Civ 1390 Auld, LJ.) For the first time in the process the Court identified what was self evident to those anxious about the processes – others also had responsibility for the departure in his evidence from areas of his expertise – in particular the judge, and Counsel acting for the parties who were well aware from his statement and evidence in chief what were the limitations of Meadow’s expertise and yet asked and allowed questions to be asked on matters beyond that expertise. The Court has given guidance on those issues. No disciplinary action has been taken against the legal personnel. Paediatricians have noted that no official comment has appeared from any interested Body criticising the approach of the GMC throughout the process. While Meadow endured these processes the extensive media coverage suggested that all he had ever contributed to child protection was in doubt and in particular the approach to Fabricated and Induced Illness to which had made an enormous contribution was flawed. No official comment making clear the narrow aspect of the GMC proceedings or correcting the impression given in respect of the wider issues was made by the GMC or any other interested party. On the contrary, Ministerial statements appeared to support the impression. (See for example the Parliamentary Statement of the Solicitor General on 24 March 2004 in which she wrongy identified the Cannings case as one in which FII had been alleged.) A cross party parliamentary group has been formed, the purpose of which appears to be to foster and support without formal contradiction the case that FII is an invention of the child protection professionals. The Court of Appeal cases emphasising that beyond the issue of statistics there was no reason to be concerned regarding the evidence of Meadow (see for example R v Martin (2005) EWCA Crim. 2043) have received no publicity. In addition to the three high profile cases being inappropriately linked, they are now also routinely inappropriately associated with shaken bay cases and FFI. A further example of official action calculated to encourage departure from this area of work for those who know of it is the Amendment to the Family Proceedings Rules (1991). Rule 10.20A now permits parties to Family Court Proceedings to disclose without the leave of the Court, court documents to the GMC without any notice to the person who is to be subject to complaint or any opportunity to argue against. Distinction between Witness of Fact and Expert Witness (Bullet Point 4 in Executive Summary This distinction is unhelpful and inaccurate. The rules for expressing opinions in Court are the same for all witnesses whatever the process by which they have become witnesses. Witnesses may only express opinions within the area of their expertise. Treating doctors who later appear in court are not prevented from expressing opinions within the area of their expertise – they will have been forming judgments in practice and can give evidence on the basis of those judgments and any other matters that fall within their expertise. Often a treating doctor will have as extensive expertise as any of the witnesses involved solely for the purpose of assisting any subsequent proceedings. The suggestion in this Bullet Point has already had a detrimental impact and fuelled the reluctance of treating paediatricians to express opinions about causation or presentations to other child protection professionals who have difficult judgments to form and decisions to make. What is the Problem? The problem for vulnerable children is not primarily the difficulty in securing expert witnesses in proceedings – it is the withdrawal of paediatricians from child protection work and the reluctance of paediatricians to express opinions or judgments in this area. This is primarily for fear of exposure to processes in which they have no confidence that could lead to very unpleasant situations through which they will have little support, that interrupt career progression and may bring an end to their careers. The Consultation Document includes nothing that will deal with this issue. The arrangements proposed, whatever the merits in terms of bureaucratic management, will not improve either the availability of expert Witnesses or improve the willingness of paediatricians and other professionals to engage in child protection work. David Spicer,LLB, February 2007 Click here
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