The Hearing Trundles On
by Martin J Walker
17 to 20 July and 23 to 26 July http://www.cryshame.co.uk/index.php?option=com_content&task=view&id=48&Itemid=26
The Prosecution Case
The Case for the Prosecution
The Lancet paper:
The Birthday Party
The actual case for the prosecution
Dr Pegg the Anaesthetist
Legal cases, whether they be seen from the perspective of the prosecuting or defending counsel, are dependant upon narrative; the telling of a story. Unfortunately for Miss Smith, the GMC have provided her with an already threadbare narrative which because it is all she has, she proceeds to bang on about as if it were the dead parrot in the famous Monty Python sketch. Watching Miss Smith try to construct a believable story out of her information is heartbreaking for anyone who enjoys the legal process.
But what is even the best lawyer to do without a story? You could hum and haw your way through the whole production - making it up on the hoof so to speak - or you could take the strategy for which Miss Smith has opted.
This strategy involves hurling chunks of disconnected information at the defence in the hope that at the end of the hearing some damage will have resulted. Because her case contains few specifics and very little fact, each plank of Miss Smith’s prosecution is shaped in global terms.
In hearings of this kind, the nature of the defence is inevitably structured by the prosecution. So while it is clearly Miss Smith’s intention to filibuster her way through the case, the defence has to respond with a careful, exact and specifically detailed revision of the local facts. Because the prosecution is based on partial information and a threadbare story, the defence has to bring to light the facts which make the story whole.
They have done this with great dexterity in the first two weeks of the hearing. Defence counsel’s cross examination of the prosecution witnesses brought so far has been exemplary. They proceed quietly and with an erudite commitment to prizing out the truth. What is really exciting to watch is the way that defence counsel shape and place the bricks of their case with such smoothness that even the most professional of witnesses are unlikely to see the denouement.
Most of my experience of law is with criminal cases, where one is rarely dealing with complex arguments. The defendant knows not to say that he carried out the crime while the police have spent hours in the canteen checking their notes to ensure consensus about exactly what time the defendant went for a pee the day before the robbery. In the GMC case, however, the arguments are subtle and the whole craft of cross examination might be observed at its most intricate.
On Tuesday 17 July, after a morning to discuss legal issues, particularly that of the confidential nature of children’s medical records, Miss Smith spent the afternoon giving a broad description of the prosecution case. She began with the words:
‘It boils down to simple allegations against a research project to do with a new syndrome’.
If other members of the public and the press were thinking that this broad description under a number of heads was the opening of the prosecution case, to be followed by witnesses, they were to be sadly disappointed.
On that Tuesday afternoon and for all day on Wednesday, Miss Smith presented almost every detail of the prosecution case. This presentation inevitably made one wonder why the GMC were bothering to call witnesses to the hearing, as Miss Smith appeared to have given much of the evidence herself.
At one point on Wednesday afternoon, during an analysis of the route by which the children were introduced to what the prosecution call ‘the research’, a problem associated with this style of presentation obviously occurred to the leading defence council. He stood, to ask why Miss Smith, while appearing to introduce the whole case in detail, had missed out large chunks of the narrative that did not support their case.
The idea of the defence asking the prosecution to include defence material in their opening remarks left me momentarily bewildered. And in fact Miss Smith slid easily from beneath the guillotine, explaining that it was not up to her to introduce facts which helped the defence case. The defence, she said, would have ample opportunity to bring these matters to the attention of the panel, during cross examination or during the presentation of the defence case.
When, defence council must have been thinking, would it be possible to correct this view that children had arrived at the ‘research’ in an unorthodox and unethical manner. If each child’s circumstances was not to be specifically presented as evidence, how was the defence to give a detailed map of each child’s route to the research?
In fact, although each child’s route to the Lancet case series is vital to the prosecution case, the children and parents have been left out of the hearing, obviously because they are all sympathetic to the defendants and furious about their prosecution. It is rather as if in a case of serious assault at the Old Bailey, the prosecution fail to bring the victim to give evidence because he insists that he was never assaulted.
When viewed from the perspective of the parents and children, the GMC hearing brings up other serious questions besides such things as research regulation and the power of pharmaceutical lobby groups. The hearing throws into our vision, the whole question of the individual’s right to choose medical interventions and the doctor and research workers’ right of freedom to prescribe and research in areas where policy is guided by corporations or governments.
The prosecution has broken down the case against the three doctors under a number of heads, these are.
The Children: By presenting the GP’s of each child whose case was reported in the Lancet paper, the prosecution hope to show that Dr Wakefield, Professor Walker-Smith and Professor Simon Murch touted for children whom they had no intention of assessing, or treating, but to whom they wanted access for the sole purpose of research. The prosecution case is also that some of the children did not meet the criteria for ‘the study’; that some children did not present with symptoms which made them part of what the prosecution insist on calling the ‘disintegrative disorder’ group and that the defendants carried out unjustified, invasive, frightening and risky procedures on the children.
Ethical matters: The prosecution will try to show that from the beginning of the application to the ethical committee, Wakefield and others confused, if not lied about, their intentions. That after approval with reservations, the doctors went their own way. They will try to show that, amongst other things, the doctors broke ethical guidelines by enrolling children in research outside the time frame of the ethical approval; confused the GP’s about how the ‘research’ was being funded and failed to include details of ‘research’ procedures in the patients’ notes.
The Lancet paper: Under this head, the prosecution will try to show that Wakefield and others completely misled the editor of the journal, especially in that they were well aware of the serious nature of their conclusions and the damage which it might do to the nation’s public health. Part of the case against the paper is that Wakefield had failed to make a declaration of conflicting interests.
The Birthday Party: As the prosecution made the case, the taking of blood at a children’s party and the ‘inducement’ of £5 to each child was made far worse a crime after Wakefield told a story about it during a lecture in America. This telling of a humorous story was considered, ‘so inappropriate as to bring the medical profession into disrepute’. Of course, considering that the anecdote has always been the mainstay of both the medical and the legal profession, this is a culturally, if not legally, astounding position.
Miss Smith went through the background to each of the children reported in the 1998 Lancet paper. She did her best to distance the children from any perceived vaccine-related event. She failed to mention that hundreds of other children had undergone the same procedures for clinically indicated reasons. She also failed radically to introduce the parents into the story. Had she done this, it would have become clear that, at the time and to this day, the parents were more than happy to have someone take an interest in their child’s illness and to share with them the terrible ordeal of having a damaged child without any real hope being held out to them.
The prosecution reported the cases of these children in the context of a health care system which is without fault. A health care system in which GP’s, for instance, always give parents the right advice and quickly reach correct diagnostic conclusions. In fact the reality is almost the opposite. All the GP’s who gave evidence followed the advice of parents that they wanted their children referred to the Royal Free specifically because no one else was able to offer a diagnosis.
The prosecution called a majority of the GP’s who initially dealt with the children whose cases were reported in the Lancet paper. There was some reluctance amongst a number of them to appear. This was summed up by one GP who responded acerbically to one question: ‘I have been drawn into something which is bigger than me and I would rather be back at my practice seeing patients’.
The clearest impression garnered while the GP’s were giving evidence is that the prosecution is doing everything they can to avoid bringing the children, the plight of the parents, vaccination or MMR into court.
As Miss Smith took the hearing through each of these cases, the children and their illnesses were all carefully distanced from their vaccinations or the possible adverse effect of these. Equally, the parents were very cleverly painted out of the picture, so that to all intents and purposes it appeared that they had been put into a terrible dilemma by a rogue doctor wanting to experiment on their children.
Just so that I could clear my mind on this matter, I asked one of the parents – of a child who was not actually included in the case series – whether she and her husband had been disturbed by the offer of tests given by the Royal Free team. ‘I think that my boy would have died if he hadn’t had the tests which were proposed’. ‘It was the logical step to take, we had absolutely no doubt at all about the tests’. She thought for a moment: ‘ I don’t know any parent who had any doubts about the tests’.
Listening to Miss Smith, one lost count of the number of times she said, ‘Neither the GP nor the Consultant mentioned that there were any gastrointestinal problems in this case’. To which one is bound to answer, ‘Well they wouldn’t would they, this is the reason they ended up with Dr Wakefield, who outlined a NEW syndrome’. This of course is the nature of serious scientific research, that medical research workers find solutions by looking at a numbers of cases, where GP’s remain confused by the experience of individual cases.
I have always thought that it would be the parents who will win this case and for that matter the campaign. From the beginning the ‘lobbyists’ have sent out a clear message that Wakefield is on his own; a ‘lone maverick’. Only the parents could save him from this description, by coming forward for the case and the campaign and making it clear that he has their full support.
However, when it comes to working with children and parents, lawyers have an approach similar to that which WC Fields had towards children and animals. They seem to be considered by lawyers as loose cannons. It is for this reason almost entirely that the real story will not come out of this hearing. What the hearing has done is refocus the matter entirely on Dr Wakefield, and to a smaller extent the other doctors, at the expense of the parents and children. It puts all the power into the hands of doctors at various levels of authority and takes away from the parents their experiential evidence of their children’s damage. In this, the defence is playing a similar game to the prosecution. Neither team wants the hearings to leak out beyond the professional domain and into the public.
On Tuesday July 25 Miss Smith began to address one of the main planks of the prosecution case; Dr Andrew Wakefield’s alleged failure to abide by ethical rules governing the practice of research. A lawyer with a good story might have started by leading the first witness through their evidence in chief, asking them to describe the role of ethics committees before moving on to tired old lines such as,
‘Was there a time in 1996 when Dr Andrew Wakefield approached the Royal Free ethical committee with a research project.’
If the answer is ‘yes’ then the project can be investigated.
Aware of her lack of story, Miss Smith began by reading what seemed like every pertinent document, word for word, which addresses ethics and research on human subjects. Having dealt with the historical and global, little of which had anything at all to do with anyone in the hearing, she then moved directly to the witness.
When, however, she asked Dr Pegg, Consultant Anaesthetist at he RFH and Chair of the hospital’s Ethics Committee, to agree the history of ethics in the developed world since the second world war, Dr Pegg immediately responded, ‘Yes but you have missed out the most important reference, The Declaration of Helsinki’. Miss Smith immediately hunkered down to read this document word for word as well.
Personally, I felt that Miss Smith missed a good opportunity when she failed to read out the Nuremburg Codes, which would quickly have tarred Dr Wakefield and his co-defendants as Nazi’s as well as mavericks.
In leading Pegg through his evidence-in-chief, Miss Smith kept her creature on a very short leash. But because she had hopelessly overcrowded the evidence with irrelevant detail, the shape of her narrative was lost, certainly on me and perhaps on the panel. Prosecuting with a witness such as Pegg, one needs to coax from him clear and simple ways in which the defendants had acted unethically. But Pegg was almost apologetic, and like the GP’s, of course, keen to watch his own back;
‘Don’t forget, these were the guidelines which we used 11 years ago’ and
‘Yes that was probably my secretary (referring to a wrongly dated letter) she was overworked’.
Oddly enough, Pegg, who clearly came across as having something simple to say about the defendants ignoring ethical guidelines, found himself guided by Miss Smith into byways of obfuscation. That, and the fact that in this complex case pages in evidence folders appeared frequently to rearrange themselves, provoking endless speculation about page numbering, inevitably drew attention to the weakness of the prosecution case.
When Pegg had been led through his evidence in chief, it looked as if the prosecution might have dug up a couple of sharp points about the doctors’ behaviour. Had the defendants not, for example, enrolled children in the ‘research’, before the start date granted by the ethics committee? Had they continued to give lumber punctures in some cases even though the ethics committee had warned them against this.
However, when Mr Miller rose to cross examine, holding a sheaf of papers which turned out to be letters, sequentially important in the actions of the RFH group, even these issues were well on the way to being resolved. When Miss Smith said with muted complaint,
‘I just want to make clear to the panel that we have not seen these letters’,
one was tempted to ask ‘Why not?’ was she saying that after three years of assembling the prosecution case, she had based her case on an incomplete exchange that had gone on between the defendants and the ethics committee?
Three quarters through the cross examination of Dr Pegg, the whole matter of documentation became even murkier. Looking for the rest of any exchange which might help his client Mr Miller asked Pegg:
‘Do you have any ethics committee records at the Royal Free?’
‘No there is no paper work. Everything is shredded after three years’.
The matter appeared to have been dropped but then an hour later, Miller approached it again.
‘You have no record of these letters?’
‘No we have no record, everything is shredded after three years’.
‘That seems a very short time to keep records’.
‘No everything has been digitised, after it has been digitised all the paper records are shredded’.
When Miller appeared surprised at the deception that had apparently been practiced on the defence. Pegg added scathingly.
‘If you want something, you can go and search through all the discs if you want’.
This in a tone of voice which suggested that what he meant by their being no records had been clear all along.
This was, amongst other of Pegg’s acerbic asides, an indication of his general attitude to the defence. Throughout his cross examination, his manner was unhelpful and truculent. At one point having answered a string of carefully framed questions from Mr Miller, with breath short stunted ‘yeses’, he answered the final one with:
‘Well I’ve answered all the others with yes, I might as well answer this with Yes as well’.
In a proper court, like so much else, this childishness would have earned Dr Pegg a rebuke, if not a warning, but in the court of Miss Smith, Dr Pegg, a creature of the prosecution was allowed to bring the tribunal into disrepute. Nor was Dr Pegg able to stop himself from openly insulting Mr Miller, suggesting in a hardly veiled manner that he was ‘stupid’ and perhaps illiterate.
The evidence of Dr Pegg must have left a bad taste in the mouths of many people in the hearing room. It was evidence which only the defence barristers walked away from with some kind of honour. Watching Miller, Koonan and Hopkins hold their tempers while revealing Pegg’s bolshi nature to the panel was an object lesson in how to cross examine a difficult and rude witness.
Just as the prosecution had, at the end of the day, been utterly unable to depend upon the general practitioner witnesses to state clearly that Dr Wakefield and his colleagues had trawled the country for children to experiment upon and then had failed to treat these children, so Dr Pegg failed to aid the prosecution in simplifying how Wakefield had broken the guidelines of the ethical committee.
The prosecution needed Dr Pegg to be able to make simple and obvious statements about how Dr Wakefield had acted unethically. However, because like the GP’s, Pegg also had to watch his own back, he seemed unable to accuse Wakefield in a straightforward manner.
Did Dr Wakefield or any member of his team write back and discuss the changes that the EC had asked for? Pegg wasn’t sure and had no records.
Was it just Dr Wakefield involved in this project? Pegg couldn’t really remember who was involved. When the signatures of around ten clinicians and technicians on the submitted forms were brought to his attention he seemed surprised.
But by far the biggest failure of Dr Pegg’s evidence came when he was asked about the requirement for applicants to declare sources of finance. He had to admit that, because of the routine way in which all funding had been handled by the RFH trustees, there was no requirement for a declaration of original sources of finance on Dr Wakefield’s (or anyone’s) part when completing the relevant ethics form. Given that such specific information about financial sources was not required in the financial section, it was unclear where one might make mention of it. The best Dr Pegg could do was to suggest that Dr Wakefield might at least have declared legal aid funding under ‘objectives of the study’, which seems rather odd to say the least.
The defence was clearly preparing the path for the argument which will inevitably take place around the authors’ failure to state any conflict of interest relating to the Lancet paper. On this matter Pegg was immensely helpful to the defence claiming that such matters were ‘…not even on the radar in 1996.’
A second key matter on which the defence was eager for commitment from Dr Pegg was whether a ‘case study’ - that is a clinical report of one or more similar cases – did or did not need ethical committee approval. On this matter, Pegg was hardly helpful to anyone. If the doctor concerned knew from the beginning of a case that he was going to write it up, then he needed ethical approval. If he did not initially intend writing up the case but did anyway, then he didn’t. This was a ridiculous explanation and one suspects it was made up on the hoof. What he probably meant to say, was that if individual children were examined for the sake of a scientific study then the doctor concerned needed ethical committee approval. If, however, all the children were seen on the basis of clinical need and at some point a number of the cases were written up, no ethical committee approval was needed.
On the evidence so far, after almost two weeks of the hearing, the defendants appear to be in very good shape. However, it will not be clear up until the last breath of the hearing what value the panel members will place on the evidence. With a case such as this, which has been in the public domain for over three years and which panel members have probably read about extensively, it would seem almost impossible that they do not have pre-conceived notions about the three defendants.
Transcripts were freely available through week one, when allegations were being read out without rebuttal. After cross examination began it was decided not to make them available any more.
* * *
Finally, I have to make it clear to visitors of this web site, that these accounts will not on the whole contain silly stories about Brian Deer. The GMC hearing is a very serious matter.
However, someone who read the report about the first day of the hearing told me that I had missed a little story about Brian. Apparently, during the first day, he had returned after lunch to the GMC building with MP Evan Harris. After facing a hostile crowd, and in his haste to get back inside, he missed the door and bumped into the glass wall of the building. Confused, he turned round, faced the crowd momentarily then tried to find the door again, only to bump into the glass wall a second time. Eventually a concerned and rather amused police officer, guided him gently back inside.
CryShame is a UK initiative backed by international support. Our primary aim is to bring to the attention of the world the current plight of thousands of children worldwide who are being refused treatment or even investigation of their symptoms following developmental regression into autistic-like disorders. Many of these children are physically ill, many are not receiving appropriate medical interventions and most are refused adequate educational provision.