PROFESSOR Sir Roy Meadow, a world authority on child abuse, was found guilty of serious professional misconduct by the General Medical Council (GMC), for the evidence he gave in the Sally Clark case. She was wrongly convicted of two baby murders that never happened. The GMC Tribunal ordered the professor’s name to be erased from its Register. When he successfully appealed, Mr Justice Collins not only exonerated him, he changed the law, giving immunity to all experts for what they say in evidence. No professional body can now discipline its members for what they do in court. The GMC is appealing the judgment this week. Is immunity a much-needed reform that will help to prevent child abuse or will it send more innocent people to jail, more children of loving parents into care?
The Royal Colleges claim that doctors are so vilified that many refuse child protection work. Is the judicial justice system to blame for the injustice meted out to Sally Clark and others, in family and criminal courts? Most abuse cases would never be proved without doctors’ opinions. Nobody doubts that adults abuse and sometimes kill children. The Victoria Climbié case — where more than a hundred inflicted injuries were missed by social services — is a stark example. But in many other cases, there is no unequivocal evidence; no criminal act or conduct. There are doctors — sometimes called “hawks” — who believe that there is a hidden epidemic of child abuse.
The best-known theories “proving” the epidemic are: Munchausen’s syndrome by proxy (officially, now Fabricated Illness), the Rule of Three, that three infant deaths in the same family means all three were murdered, and Shaken Baby Syndrome. They have sent countless people to jail and children into care. All three theories are now being seriously challenged: Munchausen, first named by Professor Meadow, gave a medical label to a new form of child abuse: a mother fabricating symptoms in her child to draw attention to herself. It happens, but experienced consultants say it is grossly overdiagnosed. Munchausen is a tempting diagnosis when a doctor is baffled by difficult symptoms. It is officially recorded in 1,200 cases a year in the US and reported with surprising regularity in the British press. An American mother, facing Munchausen charges, fled the state with her baby. Two years later he died of a rare liver complaint. He would have lived if his mother had been believed. Instead of a jail sentence for imaginary abuse, she will get millions of dollars compensation, but it will not bring her son back. In 2003 an appeal court in Queensland, ruled Munchausen inadmissible in law. It does not “form part of a recognised, reliable body of medical knowledge”. It should never again figure in any courtroom or hospital.
The Rule of Three began life as a postscript to a highly respected book by Dominic and Vincent Di Maio, American forensic pathologists. Every other finding was backed up by research and references. They posed a question, not even a theory: is one cot death a tragedy, two suspicious and three murder until the contrary is proved? It rang bells with paediatricians — but not forensic pathologists — all over America and became the Rule of Three. It has been used to condemn mothers and others in family and criminal courts. At least one went to death row. In 2004 the Tennessee Court of Appeal heard the case of Vernica Ward, a mother convicted of killing her three babies. The learned judges decided that the Rule of Three was no more than medical folklore — superstition.
Shaken Baby Syndrome is self-explanatory: if you shake a baby hard enough you will surely injure, if not, kill it. For more than a hundred years before 1972 pathologists certified that retinal haemorrhages, and bleeding and swelling of the brain were caused by impact, deliberate or accidental. Paediatricians insisted something more dramatic was happening. In 1972 an American doctor, John Caffey, suggested that shaking might be the cause; it was not backed up by research. Paediatricians leapt on it. They had their answer: brain damage and retinal haemorrhages combined became the classic signs of a shaken baby. It spread like a virus. In 2002 the American Academy of Ophthalmology told its members: “Shaking injury can now be diagnosed with confidence regardless of other circumstances . . . the findings are thought to result from repetitive abrupt deceleration of the child’s head as it whiplashes back and forth during a shaking episode.”
Can murder be established by a thought? Forty-eight shaken baby experts were involved in four shaken baby appeals in London in July last year. Two were allowed, one dismissed and the fourth reduced from murder to manslaughter. The judges were equivocal about whether the classic signs prove a killing by shaking. In 2004 a neurosurgeon, Ronald Uscinski, recorded in the Journal of American Physicians and Surgeons, that in 33 years not a single witnessed incident of shaking, causing intracranial injury, had been documented; and that, since 1943, all experiments had failed to prove that adults can generate the required rotational acceleration, by manual shaking, to cause them. That so many experts have disregarded this research is shocking. Dr Kirk Thibault, whose Pennsylvania laboratory has been working on shaken babies and allied subjects for many years, presented a paper in London in May confirming that shaking cannot generate, by an order of magnitude, sufficient deceleration force to cause the classic signs or to kill a baby. But an accidental fall from three feet can. Dr Patrick Lantz, a forensic pathologist at Wake Forest University medical centre in North Carolina, recently reported a study of the eyes of more than 700 people, of all ages at post-mortem examinations. Of those under the age of one year, 19 per cent had retinal haemorrhages with no suspicion of abuse.
False allegations ruin lives. In family courts the rules of evidence are so skewed that parents come second to prosecution experts; proving innocence is often impossible. Yet doctors are always hostage to the knowledge that lurks in the future. Tomorrow’s discoveries are facts of life that patients have to live or die with. No legal system is perfect, but it is not the system that is causing miscarriages of justice; it is medical opinions that are not as sound as they appear to be.
Two steps are required to establish a medical advance: clinical observation and laboratory investigation. Here is a suggestion, by a lawyer, not a doctor. Judges have a wide discretion over the admissibility of opinion evidence. Before any criminal or family case begins, the judge should ask the expert if his evidence meets the two-step test. If it does not, he should rule his opinions inadmissible. It may be impractical to stop a doctor saying: “In my experience . . .” but if he cannot back that opinion with research and laboratory results, the judge should openly rule that the opinion may be worthless. He should not allow statements like: “this theory is well established” or, “doctors have known this for years.” This suggestion will not require a change in the law. If adopted, huge court time and legal costs will be saved, mothers and fathers will be spared the torture of false allegations of abuse and Royal Colleges should be able to assure their members that they will not be unjustly criticised if they take up child protection work.
The author is a solicitor and was part of the Sally Clark defence team. His book, Stolen Innocence, telling her story, is published in paperback by Ebury Press
