[back] Wakefield GMC Hearing 2007
by Martin J Walker MA
Monday November 10 - Friday November 14 http://www.cryshame.co.uk
The big question that hangs over the GMC hearing is whether Dr Horton can find time in his busy schedule, saving humanity, to fit in an appearance at the GMC to defend his prosecution evidence.
The presentation of Professor Walker-Smith's expert witnesses was, in its entirety, fairly short, lasting from November 3 to November 14. The last week, from November 10 to November 14, saw some pauses and witness-agenda problems. In fact, the hearing only sat on Monday, Tuesday, a half day on Wednesday, not at all on Thursday, and finished around 15.00 on Friday, when it wound up completely. The nature of the evidence, as well, seemed stilted and stuttering; it kind of dribbled along until its culmination on Friday, in a sudden and unexpected fire-work display.
In the end, Professor Walker-Smith brought three expert witnesses in his defence. Dr Williams, who as I reported in my last account, gave evidence about the safety of colonoscopy; Dr Miller who gave by far the longest evidence of the three experts, and Dr Thomas who was shoe-horned in last week during Dr Miller's evidence.
Perhaps I should explain again why it is not really worth looking at the evidence of the expert witnesses in detail. All three expert witnesses, obviously, defended the clinical course of action taken by Professor Walker-Smith. The prosecution argued as they always have, that the children arrived at the Royal Free by unorthodox routes, that dangerous invasive procedures were used on them and most importantly that a number of the children were not treated on the basis of clinical need but experimented upon as part of an undeclared and unethical research project.
As I said in my last report, Dr Miller was a good defence witness in a number of ways. It occurred to me during his evidence, that the prosecution had been very clever in lulling me and presumably others, into a false feeling that the three defendants, especially Dr Wakefield, were in some way charlatans connected to private medicine, or in the case of nutrition, quacks. Whether or not this has been deliberate I don't know, but nevertheless, this very abstract idea has often been re-enforced. Talk during Dr Wakefield's prosecution and defence, of private patients, money paid into this account or that account, legal aid money, transfer factor quackery all added up to a construct of Dr Wakefield as a 'smooth operator' deeply embroiled in 'private' rather than 'public' medicine.
Dr Miller did his best at every turn to dispel these ideas about the defendants and to draw all three doctors and their practice back into the domain of the NHS. He frequently introduced the phrase 'In the NHS we do it in this way', so playing a light on the defendants as servants of the community rather than quacks preying on the parents.
Miss Smith's cross examination of Dr Miller ended with the most outrageous question, intended to push Dr Miller into a corner. 'If ' Miss Smith asked 'the panel decided that the children in the Lancet paper were also in (the research project) 172/96, he would think it wrong and unethical wouldn't he?'
The question was outrageous because it was a singular attempt to bring the prosecution case back to the attention of the jury despite the fact that it did not come exactly within the remit of Dr Miller's evidence. Although Dr Miller could talk on such things as the clinical protocol and research ethics committees in the abstract he didn't actually have evidence of whether the children had or had not been seen under any research protocol. The question was based upon an assumption about the possible decision of the Panel on what is one of the primary issues of the hearing; Miss Smith was asking Dr Miller to state that there was a chance the defendants were guilty.
After a brief exchange, Miss Smith's question was reduced to; 'If seven children were investigated for research purposes it would be unethical, wouldn't it?' Although I say above that this question was outrageous, it probably represented Miss Smith's most professional legal flourish. It was a question that, completely phrasing the prosecution case, asked an expert defense witness for agreement.
Quite rightly, Dr Miller began by trying to evade the question on the grounds that it was too hypothetical. Although he tried his level best to avoid a simple answer and ended by answering the question generally as an expert witness should have been allowed to do, this was only after Miss Smith had harangued him into making the clear and undeniable statement, 'Yes it would be unethical'.
There were signs throughout this last broken week that even Miss Smith was tiring of the repetitious account of the charges and the ceaseless drip, drip, drip of the same questions relating to the individual children. But then suddenly on Friday, when everything was almost all over and people were wondering where they had left their macs and umbrellas, one of the hearings small subterranean volcanoes erupted. I almost missed its beginning when it went from criticism, to what passes for a full-blown row in about 90 seconds.
I was first conscious of the fact when Miss Smith, in her usual sotto voce style - as if she didn't really want anyone else to know what she was saying - talking about Dr Horton being recalled to give rebuttal evidence. I will refresh your memories before I go further with this.
Dr Horton gave evidence for the prosecution against Dr Wakefield. In his evidence he suggested that from a scientific perspective there was nothing at all wrong with the Lancet paper, in fact he praised it. His criticism of Dr Wakefield in particular was that he had undeclared conflicts of interest, having received money from the Legal Aid Board to conduct research as an expert witness which he had failed to declare in the Lancet paper. According to Horton's evidence, as soon as he found out about this conflict of interest, he made a statement saying that the conflicts invalidated the paper and had he known about them before the publication he would not have published the paper. Following Horton's evidence and after he had left the witness stand, the defence produced documents, to the hearing, that had just then come to light. The letters contained information which indicated that Dr Horton knew about Dr Wakefield's contact with the Legal Aid Board a year prior to the publication of the Lancet paper.
Anyway on the afternoon of Friday 14th November, Miss Smith was on her feet explaining in very sensitive and sympathetic terms why getting Dr Horton to Euston Road this century was a logistic feat similar to the one that faced Hannibal in 203BC during the second Punic War. Unusually, and obviously in order to impress the Panel and assume the moral high ground, Miss Smith detailed Dr Horton's itinerary in the days after the hearing resumed on January 12. This diary included what Miss Smith seemed to think was a clincher. On one day, pride redolent in her voice Dr Horton was in 'Palestine', 'launching a session in relation to health on the West Bank'. Of course, this is very laudable and I'm sure that the whole prosecution team has been a constant supporter of the Palestinian cause; one can tell this from Miss Smith's use of the term Palestine, a country that ceased to exist in 1948. Interestingly one wonders whether Dr Horton's visit to the West Bank has anything to do with his relationship with Mr Blair who is now a Middle East Envoy.
Anyway, it was quite apparent from Miss Smith's litany of Dr Horton's important humanitarian work, that fitting in to give evidence at the GMC hearing was not only small potatoes but indescribably difficult. Miss Smith attacked the problem as if all the parameters of it were settled and taken for granted, it was, undoubtedly the hearing that had to fit in with Dr Horton and not Dr Horton who had to fit in with the hearing.
Miss Smith even had the length of Dr Horton's evidence decided and in one particular defence of him, she said something like; 'Well Dr Horton's evidence will take about 50 minutes, he should be able to fit that in ....' To be honest, it might have seemed to the casual observer that Miss Smith wasn't trying very hard to get Dr Horton to the hearing. This idea was supported by a seemingly quite angry Kieran Coonan, who spluttered, that it was obviously impossible for the defence to come to any conclusions about how long Horton's evidence would take because all they had so far produced was an unsigned statement i.e. a rough draft of what Horton might say but without the authority of his signature. 'We have', Mr Coonan said, 'been waiting since day 69 for a signed statement (it was now day 108)'. This was clearly a lamentable situation and I wondered why, with Mr Coonan and Miss Smith seeing each other on most days in the same chambers, Mr Coonan had not asked her about Horton's statement. This led me to ponder the rules that govern any conversation about cases between defence and prosecution outside the hearing; I'm still not sure there are any.
But Mr Coonan's evident dissatisfaction was as nothing compared with that of the Legal Assessor who when asked to contribute to a solution about the timing of Horton's appearance said quite dryly, 'I haven't even seen the unsigned statement, so it is hard for me to make any decisions'. On this, Miss Smith did one of her little turns that so endear her to us; a little aside that carries with it great natural humour and drollery. Holding up the two pages of the statement, for the Legal Assessor, sitting twenty feet away, she said,
'This is Dr Horton's statement', before returning it to her table.
To my mind this was surreal, but someone later suggested to me that it was also reminiscent of Neville Chamberlain's return from his meeting with Hitler in 1938, when he held up a piece of paper and said: 'Peace in our time'. Thinking about it afterwards, it seemed that the pleas by Miss Smith with respect to Dr Horton's appearance, might actually be as confusing as Mr Chamberlains entreaty to the crowds of reporters at the air field.
Mr Hopkins obviously had to be consulted on the time that Dr Horton appeared, because the next time the Big Top comes to Euston Road in January 2009, Mr Hopkins will be conducting Professor Murch's defence. It would do neither Mr Hopkins nor Professor Murch any good at all to have to stopper the flow of the defence with Dr Horton's complex explanations about his sudden discovery of conflict of interest.
The next hearing is scheduled to take place between January 12 and January 30. I'm unsure how much of the defence will come within this time frame and whether or not it involves re-examination and questions from the Panel and I am therefore unsure of when the defence and prosecution summing up will be; I will try to keep everyone posted on any changes to the agenda.