The GMC Hearing July 30th to August 6th

Prosecuting For The Defence

by Martin J Walker

http://www.cryshame.co.uk//index.php?option=com_content&task=blogcategory&id=50&Itemid=48

Despite having chosen to sit directly beneath the air conditioning vents in the hearing room, I occasionally nod off. On Wednesday of last week I had a very disconcerting experience, I nodded off during the evidence of Dr Berelowitz, a psychiatrist who was one of the co-authors of the Lancet paper and who acted at that time as a psychiatric-paediatric liaison worker.

I must have only dozed for a moment but it was long enough for me to become caught up in a disturbing dream which I now can’t remember. I can, however, remember just before I woke, my head was full of the sound of stampeding people, running and shouting as if they were trying to escape a natural disaster. I could see the front runners as they scrambled over everything in their path, amongst them I recognised Dr Berelowitz and realised that the deserting crowd were mainly witnesses fighting to get out through the door of the GMC hearing room. Behind them was Andrew Wakefield sitting completely alone apart from some vague ghosts of friends and his defence counsel.

I woke with a start and tuned back in to Berelowitz’s evidence. He was saying that he had been happy to be a part of the research which led to the Lancet paper. He was happy with the ethical position of the research team, yes, he was also happy with the investigative tests which were carried out on the children. As far as he was concerned such tests were common in the diagnosis of bowel disorders.

However, Berelowitz went on, he had been upset and disconcerted about what had happened at the press conference. As far as he was concerned, the Lancet paper should naturally have called an end to the rather spurious tenet of the research into any link between MMR and autism. The paper clearly stated that no link had been proven and Berelowitz, for some reason apparent only to himself, had taken this to mean that no link could ever be proven. On the basis of this fundamental and rather startling misunderstanding he had expected any future research to take a completely new direction. This, naturally, had proved not to be the case and Dr Berelowitz seemed unsure of who was to blame. Was it the media? Was it Andrew Wakefield?

He suggested that his relationship with Wakefield, and his association with the research, had utterly collapsed after the press conference. Berelowitz recounted the story of how a journalist friend, present at the press conference, had got up to interview Wakefield, who had just opined that perhaps use of the triple injection should be suspended until research definitively answered the question of a link between MMR and regressive autism. Berelowitz had apparently said to his friend, 'The story is here in the paper, it shows that there is no connection between MMR and autism', his friend had answered, 'No, the story is over there with Wakefield'.

So, as far as Berelowitz was concerned, he had opted out of the research either because Wakefield was intent on pursuing the MMR theory or because the media seemed determined to pursue it. Both these reasons gave Berelowitz a way out, a way of setting himself free from his association with Wakefield and his 'crimes'.

Dr Berelowitz would, he said, have nothing to do with Wakefield after the press conference. So vehement was he on this matter, that it occurred to me for a second that he was going to say that Wakefield had forged his signature on the protocol form for subsequent research in which he had clearly been involved. In the event, however, Berelowitz claimed that he was tentatively involved in the research in name only and after a time had not gone through with any involvement. His parting shot on this matter was the simple logic that Paul Shattock was involved in the research and he, Dr Berelovitz would never be involved in anything in which Shattock was involved because his research methodology had been found wanting.

In many ways Dr Berolovitz was hoist by the same petard as all the other prosecution witnesses. He had willingly taken part in the research for a period of time, and he, as those before him, now had to somehow cast that involvement in an innocent light, while appearing happy to endorse the prosecution against Wakefield.

This situation is perhaps the worst in which any prosecutor could find themselves, calling upon a gaggle of reluctant witnesses who should, if the defendants are in fact guilty, all be with them in the dock. This predicament further accounts for the manner in which Miss Smith and Owain Thomas, the prosecutors, often appear to all intents and purposes to be presenting the case for the defence when leading their witnesses through their evidence-in-chief.

Take the matter of Dr Berelowitz and lumbar punctures. The GMC prosecution have presented these as highly invasive, risky procedures which should on no account be used on children; they were portrayed as arcane and evil experimental methods. But how could Dr Berelowitz agree with the prosecution on this matter? If he did, he too would surely be admitting guilty involvement. So, on this, as on a number of other matters, Berelowitz, witness for the prosecution, essentially gave evidence for the defence.

He had, he told the hearing, done his own research into lumbar punctures and children, just to assure himself that he was not involved in anything unethical. His quick perusal of the literature had led him to believe that lumbar punctures were commonly used in a whole series of clinical situations involving children and were used in research by some of the most authoritative institutions in Britain and America.

Dr Berelowitz had to make a similar defence on the issue of ethical approval, another of the main planks of the prosecution case. On this he maintained very clearly, as others have done before him, and as others will no doubt do after him, that the writing up of a case-series does not require ethical approval.

It has been apparent from the first day of the hearings that the prosecution is leaking like a stricken boat trying to get to harbour in a storm. Not only has Miss Smith presented portions of the defence case, but the GMC is having to depend upon, in the main, entirely reluctant witnesses who are busy watching their own backs.

The last week has been a week of extremes. It began with the pleasant and clear minded evidence of Mrs Cowie, a solicitor who worked for what was at the time the Legal Aid Board (LAB). Richard Barr, the solicitor who by 1994 had been approached by a number of parents of potentially vaccine damaged children, had applied to the LAB for money to fund research which might, or equally might not, turn out to be of use to these claimants.

That this money had apparently been used by Dr Wakefield for his research and then not declared in his Lancet paper was a main plank of the prosecution evidence. Cowie was a generous witness who seemed completely in control of her independent position. Under cross examination she was happy to tell the panel that the money which had originally been sent to Dawbarns Solicitors, had later been paid to the Royal Free Hospital’s School of Medicine.

Instead of insisting, as the prosecution might have wanted her to, that the money was ring-fenced for an exact and explicit purpose, she informed Mr Koonan, counsel for Dr Wakefield, that the money was intended for generic work in the area. The money and the research were, she said, 'like a melting pot', it was to cover 'what was going on', and could happily be moved from one head, or research project, to another.

The Last Two GPs

During the week, two more GPs of the anonymous children written up in the Lancet paper, were called. Although admittedly, calling the GP’s was better for the prosecution than calling the parents, on the whole the prosecution gained next to nothing from bringing them to court.

Both GPs gave evidence and were cross examined on the matter of their having let the patients out of their grasp and, as it were, allowing them to be self-referred by their mothers to the Royal Free. Both GPs were of a similar mind; that the cases were complex and their symptoms presented a condition with which they were by no means familiar. This inadvertent lack of knowledge had led to a series of referrals in both cases, which might be considered in hindsight to have been ‘casting around’ for a solution.

Both GPs refused to fall in line behind the prosecution supposition that in referring the children to the Royal Free the doctors had given up their patients to the devil. Both declared with ringing common sense that they had done what was best for their patients and their parents. What is more, both felt that their actions had been thoroughly vindicated when they received the discharge summary from the Royal Free and when later it became apparent that the two patients had been offered a believable diagnosis and treatment which had in differing degrees helped their condition.

The second of the GPs was an ebullient man who despite being called for the prosecution, determinedly spoke for the defence. His evidence was packed with common sense and a humble acceptance that there were people in the profession who might know more than he did.

At one point during his cross examination this doctor put succinctly into words the thoughts that had been on the minds of most of the other doctors. Explaining that he had reached a stage where he was not concerned about the child attending the Royal Free or being subjected to investigations he said; 'I was pleased that the child was being dealt with and was glad that the mother was behind the referrals. Anything was worth a try'.

By the time that this GP appeared at the end of the week, it was apparent that the prosecution had slightly changed direction. Whereas the previous group of GPs had all been tarred with the brush of sending child patients on an illegitimate caravan to be experimented upon by Dr Wakefield, the two later doctors were charged with having helped Wakefield with his obviously nonsensical research. Research which claimed that MMR caused autism.

In fact it didn’t matter, because all the GPs appeared worthy, conscientious and sensible in the face of the rather haphazard prosecution. Apart from one unfortunate remark by a doctor who suggested a patient’s mother was searching too hard for a cause and a viable treatment, when she should perhaps learn to live with her son’s condition, most of the GPs gave credence to the parent’s feelings.

The fact that these worthy doctors had been brought to London in order to give evidence against three other doctors and, in a sense, against their patients and their parents made one wonder at the GMC's political turpitude.

In an odd way, the presentation of evidence by all the GPs gave one new faith in the average doctor. All seemed unaffected by the ideological blandishments of the Department of Health and unwilling to carelessly throw in their lot with their own regulatory body. They were independent and happy to admit that they had acted in the interests of the patient and the patient’s family. All of them expressed their empathy for the terrible circumstances which had befallen the parents and in comparison with the apparently unfeeling approaches of Miss Smith and Owain Thomas, they came across as intellectually engaging and sympathetic to both the parents and the children.

The end of facts

It might almost be true to suggest that the facts of the case against Wakefield, Walker-Smith and Murch have, with the general practitioners and the expert on ethics, almost been exhausted and what we might expect from this point onwards are ideologically versed witnesses.

On Thursday August 2nd, a Dr Kirrage gave evidence and one was forced to wonder yet again about the sense of the prosecutors bringing forward lower tier apparatchik’s to make their case. Kirrage came to the GMC hearing from that very heart of darkness, perfidy and spin which is the contemporary Health Protection Agency. In 1997 he had been a consultant working for Worcestershire Health Authority, it was his job to assess Extra Contractual Referrals (ECR) from Worcestershire Health Authority to others which provide specialised services.

A mother had approached her Consultant Paediatrician, with her son’s case. The consultant appears to have taken a jaundiced view of both the mother and the child. Despite having no real idea himself of how a diagnosis might be reached, he had bridled at the suggestion that the child be referred to the Royal Free, saying that he could not see how the child might benefit.

To get support for this decision, based upon ignorance, he communicated the details of the case to Dr Kirrage. Kirrage in turn had immediately sought advice from a friend in high places, Dr Elizabeth Miller. Miller had told him that Andrew Wakefield’s theories and research were now discredited and that there was no link between MMR and autism. In her opinion it was best not to refer the child to the Royal Free.

Using a pro-vaccine propaganda leaflet sent him by Miller, that he copied into an apparently personal letter, Kirrage wrote back to his consultant friend. He suggested that the consultant send a copy of this letter to the parents, at the same time informing the child’s mother he could not see that either the child or the family would gain anything from travelling to the Royal Free in London.

What made this apparently ideologically motivated decision even more hurtful was the fact that neither the consultant nor Kirrage appeared to have the faintest notion of how they might get a proper diagnosis or specialised treatment for the child in their own Health Authority area. They were, as the mother wrote in a heart wringing letter to the consultant, dooming her son to incarceration in an institution where he would be drugged to keep him manageable.

By the end of the hearing’s third week, most of those parents, and others associated with the Wakefield camp, had a more or less clear picture of the pressure which had been brought to bear on Dr Wakefield as he began treatment of the cases which were to be reported in the Lancet paper published in February 1998.

If anyone wanted confirmation of the very personal feud which had begun against Dr Wakefield inside the Royal Free medical school, they need have looked no further than the evidence of Professor Zuckerman, who had at that time been the Dean of the school. The strategy in bringing forth Professor Zuckerman was resoundingly clear from the start of his evidence.

Professor Zuckerman was a wholehearted supporter of vaccination and immunisations. He was an advisor to the World Health Organisation, he had been an adviser over many years to the Department of Health and was a contributor to over 1,000 journal papers and articles. He had experience in epidemiology and in the safety and development of vaccines.

Professor Zuckerman did not stop, throughout his evidence, making the point that while the whole world agreed with his views about the safety of MMR, only one person in the world, Dr Wakefield, offered the contrary view. Opinion is divided, one might say.

Professor Zuckerman’s evidence was threaded through with campaigning strategies aimed solely at Dr Wakefield. The first matter at issue was that Dr Wakefield had received money from the Legal Aid Board to carry out research. As far as Zuckerman was concerned this was funding from the devil given to further the argument that Hell was a pleasant place. It was funding which led straight into a conflict of interest, possible legal confrontation with the government and a public health debacle waiting to happen.

Professor Zuckerman made the point on a number of occasions that in 45 years, he had never come across funding for research which entailed 'lawyers directing the research'. He didn’t have to explain this in any depth and defence council never put to him the endless evidence that in much research into workplace illness, in for example, the chemical industry, not only is the funding supplied by associate industrial interests but the work is carried out in industry funded establishments with data provided entirely by the industry in question.

Professor Zuckerman was only getting warmed up with these arguments. Later as he got deeper into defence counsel’s cross examination his evidence seemed to have less and less to do with real academic issues and more to do with an implacable abhorrence that gripped him in relation to Dr Wakefield.

Professor Zuckerman returned again and again to what appeared to be his most central concern, that unproven research results of this kind could only damage public health and on these grounds entirely they must not be allowed publication. Anyone paying attention to Zuckerman’s arguments couldn’t fail to conclude that he would rail against any and all research which postulated adverse reactions to vaccination on the same grounds.

At the end of the first day when Zuckerman was still being led through his evidence-in-chief, a serious matter occurred which threw into contrast the different approaches of the defence and the prosecution.

Miss Smith was almost finished taking Professor Zuckerman through his evidence, when Dr Wakefield’s counsel rose. He told the panel that Miss Smith had allowed Professor Zuckerman to give evidence which was not in the statement which had been served on the defence. Sometimes, a witness might do this on a matter which is non-contentious and which the defence does not need warning of in order to conduct their cross examination. This particular matter, however, was particularly value laden – whether or not Dr Wakefield had refused to send his research to another independent laboratory to seek replication.

Clearly, if Dr Wakefield’s counsel was to cross examine on these new allegations, he would have to go through the matter in detail with his client. In the circumstances he asked simply that the days hearing be brought to an end (it was, anyway, almost over) and be resumed again tomorrow after he had taken the opportunity of talking the new evidence through with Dr Wakefield.

It is as if such professional and real demands push buttons for Miss Smith, for she responded as she had done previously; acerbically. She pantomimed the suggestion that Mr Koonan was always doing this, suggested that it wasn’t an important piece of evidence and accused him of time-wasting. If we were to keep going over the planned time, she said, we would never get the case finished. Mr Koonan argued that we were talking about a matter of justice and not a matter of administration.

Both the legal advisor to the Panel and the Panel Chairman came to Mr Koonan’s aid and told the hearing that Professor Zuckerman’s evidence would be continued in the morning. On his dismissal for the day, Zuckerman could not help but make a special plea on his own behalf, to the Panel. They had to realise he said, just how difficult and painful this situation was for him.

Professor Zuckerman finished his evidence the following day, during which time it became clear beyond any doubt at all that he was The First True Prosecution Witness. As Mr Koonan was later to suggest, he argued a case throughout his evidence, and the foundations of that case stood out like burning charcoal thrown into the snow.

Zuckerman clearly detested Wakefield. He poured sugary flattery on both Professor Murch and Professor Walker-Smith. Answering cross examination from Dr Wakefield’s counsel, he was completely defensive. Obviously feeling trapped and threatened, he was always on the brink of leaving his chair and the hearing.

However, much of what Zuckerman said made little sense. While he claimed to have been at odds with Wakefield from the start, he thought the Lancet paper was a very good piece of work. While he sought evidence from sources outside the University about Wakefield’s work he failed to discuss his doubts with Dr Wakefield himself. He continually quoted all the august bodies of which he was a part, yet failed to answer the simple question of what you might do if research did point out a serious public health problem with adverse reactions to vaccination. Zuckerman seemed to take it for granted that any reports of adverse reactions to vaccines could not be based on good science.

But the most intriguing question of all related to the press briefing shortly before the publication of the Lancet paper. Zuckerman had helped organise the ‘conference’ and he seemed happy to chair it. He had a preview of its structure and the questions it would address. However, when a journalist at the end of the briefing, asked what approach parents should now have to the MMR combination vaccine, Zuckerman directed the question to Dr Wakefield. This was despite the fact that he knew Wakefield to have had concerns about the polyvalent vaccine for many years. Despite the fact Zuckerman was at that time in receipt of a letter from Dr Wakefield in which it was explicitly stated that, if asked at the press briefing, Wakefield would make clear those concerns.

As soon as Dr Wakefield had made the statement which apparently ended his career at the Royal Free, suggesting that it might be better to suspend use of MMR until research had proved its safety or otherwise, Zuckerman re-directed the question to Professor Murch. Murch quickly expressed his complete support for the vaccine. Why, one might ask, had Zuckerman directed the question to Wakefield?

Although Zuckerman had begun the morning at 9.35 in a seemingly reconciliatory mood, by 10.00am he was showing all the truculence of the previous day. Instead of answering simply ‘no’ to questions with which he disagreed, his returns to Mr Koonan were always qualified; ‘certainly not’ and ‘absolutely not’ he kept repeating. This showed defensiveness beyond any provocation offered by the defence.

As time slipped by, Professor Zuckerman quickly found himself distractedly hissing and booing his answers. It soon got to the point where Mr Koonan had to put it to Zuckerman that far from giving objective evidence, he was ‘arguing a case’; not that the case he was arguing was rational.

Eventually, the two protagonists, as they had gradually become, drifted rudderless into a head on confrontation. Zuckerman began to rise to every question as if it were a personal insult. Mr Koonan closed in, forcing Zuckerman into a corner. By 10.15, Koonan had arrived again at the extra evidence about replication of research results which had been offered by Zuckerman on the previous Friday.

Slowly with steady articulation, Mr Koonan put it to Professor Zuckerman that he had alleged Dr Wakefield was implacably opposed to any attempts at replication of his work, although, in fact, replication did take place. 'It’s as simple as that', Mr Koonan blandly ended the statement. There were signs, then, that Zuckerman was about to lose it.

Koonan’s next set of questions dealt with the press briefing. He suggested to Professor Zuckerman that Zuckerman was not displeased to have the paper published by Dr Wakefield and other researchers from the Royal Free. That he thought the work reflected well on the medical school. He was even, Mr Koonan suggested, pleased to chair the briefing.

At this, Professor Zuckerman lost his footing and began to slide down the cliff face, his terse venomous responses coming almost automatically. 'I absolutely reject this. I absolutely reject this. I absolutely reject this' he said in triplicate at one point.

And then, as if caught up in a shouting match with a mortal enemy he began to interrupt Mr Koonan’s well phrased questions.

The Chairman asked Professor Zuckerman to let Mr Koonan finish his questions.

Zuckerman all but left his seat, saying that he would have to get his own legal adviser to sit with him, if this kind of questioning did not stop.

Miss Smith intervened to draw upon some secret set of rules, about cross examination. 'Mr Koonan is not entitled to phrase his questions as statements'. This was news to the Panel Chairman who said that he had heard both the prosecution and the defence ask questions in this way; using the words 'I put it to you that ...'

The panel broke-up at that time, perhaps in the hope that Professor Zuckerman would regain control of himself. Oddly, in all the following exchanges, the last questions from Mr Koonan and some very polite exchanges with counsel for Professor Walker-Smith and Professor Murch Zuckerman kept himself under perfect, even polite control.

At the end of Zuckerman’s evidence one was left with the impression that he had performed cleverly, expressing his personal detestation of Dr Wakefield, defending his professional interests and managing to avoid answering the most damaging exchanges with Mr Koonan by utilising a display of histrionics.

I have been interested to hear the Chairman of the panel refer to the proceedings on a number of occasions as an ‘enquiry’. By no stretch of the legal imagination could this be the case. The proceedings are adversarial and at their heart is a hard brought and fought prosecution.

The prosecuting authority is the General Medical Council, which is acting in concert with government public health policy and pharmaceutical company marketing strategies. The ultimate point of the prosecution is, from the prosecutor’s perspective, to defend the regulatory tenets of industrial scientific and medical research, isolate Dr Andrew Wakefield, and cast him out beyond the pale of informed medical opinion.

Were this an ‘enquiry’, an independent GMC would, from the beginning, have produced evidence of process, which would cast light on the motives of the sole complainant in the case, Brian Deer. Had it been an enquiry, many hours would have been spent recording the evidence of all the parents who had cajoled, fought and pushed their way to the Royal Free in order to get their children the best medical attention available in Britain.

This hearing is to all intents and purposes, a ‘trial’. As such, it is remarkable in contemporary society for not questioning, in any degree whatsoever, issues arising from the power of the pharmaceutical companies, their vested interests and their marketing strategies. The word ‘kangaroo’ became associated with the word ‘court’ presumably on account of that animal’s capacity to jump over great swathes of ground.