Expert witnesses: case for the prosecution

Cases such as those of Angela Cannings and Sally Clark have thrown a spotlight on the role of expert witnesses. John Hemming calls for an overhaul of a system that can lead not only to injustice but also the break-up of families

My wife recently had a leg infection. She phoned up NHS Direct who sent her to the new private locum service. It was decided that it was an inflammation and she was given a steroid cream. The end result of this was that the infection got worse and we ended up making a number of trips to casualty as the system fumbled around trying to find a way of resolving the infection. Finally, the infection got better. What impact the original diagnosis had will always be unclear. It probably helped, but we can never be sure.

If the original doctor did make an error his action would still probably satisfy the Bolam Test. The test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 583) basically says that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. To that extent, if a doctor does some harm in trying to cure a patient, that is not legally negligent as long as it satisfies the Bolam Test. If medicine moves on and it is determined that what was done was always wrong that does not mean that the original act will not satisfy the Bolam Test.

To that extent, therefore, there can be seen to be a range of viewpoints relating to any particular issue that are acceptable. This works reasonably well as clinical medicine is still not a rigorous science although it is moving that way as it has been for millennia. Where a greater problem arises is in legal processes where doctors are acting as expert witnesses.

Readers will have heard of the Sally Clark case where a doctor prescribed "guilty" as a result of certain symptoms. But they probably won't have heard of the case of Oldham MBC v (1) GW (2) PW (3) KPW (a child by his guardian Jacqueline Coultridge) & Forbes (Intervenor) (2007). This is a case that was in the family court. A baby had a medical problem and the initial diagnosis by the doctor was that the parents had caused it. The parents asked the judge for a second opinion, but the judge refused. The parents then asked the Court of Appeal to allow a second opinion and the Court of Appeal refused. The parents then said "pretty please" to the Court of Appeal and it relented. After a few more experts had come in and they had gone into huddles over a period of months it was concluded that the clear medical evidence that all were agreed on was that the parents could not be guilty. To that extent the diagnosis was not "not guilty", but in fact "innocent".

In the meantime the baby had been taken away from the parents and the mother had had an abortion to avoid having to deal with social workers and the courts if she had another baby.

It is important to emphasise the enormity of what happened here. First, the same expert who diagnosed "guilty" in the end diagnosed "innocent". The court declined to criticise the expert for his opinions recognising the difficulties of diagnosis in this area. Second, the family court judge refused a second opinion to start out with. Furthermore the Court of Appeal initially backed her up. If the parents had given up at this point they would have been effectively banned from bringing up children in this country and would have had to emigrate if they wanted to have a family.

Let me emphasise again what happens when a doctor diagnoses "guilty" in the family courts. If the parents say they are innocent, in many cases they have their adoptable children removed from them (older and disabled ones are left) and given to other families. If the mother has any more babies they are removed at birth. If the father leaves and marries someone else and she has a baby, that baby is removed at birth.

Of the children adopted in 1995, 370 were newborn babies taken into care in the first week of their lives. Of those adopted in 2006, 920 were newborn babies of the same age. It is important to remember that there are a relatively static 250 or so babies given up each year who would be expected to go into care(¹). There has, however, been massive pressure on local authorities to increase adoptions from care, which has coincided with a massive increase in the numbers of babies being taken into care. The causal relationship is a matter for discussion, but in my view the evidence is sufficient to warrant an investigation by the UN Human Rights Commissioner.

Many family court judges are in a big rush to get a final judgment so that the baby who cannot be left with the parents is given an adoptive set of parents. That is why the family court judges are really not interested in hearing an alternative view of an expert who may disagree with the original expert. There is also the cost of having the process drag out and it is all rather inconvenient.

Parliament has helped this by allowing the courts to dispense with the natural parents being a nuisance and resisting adoption of their children.

Parents who complain publicly are liable to be jailed for complaining. I am aware of one parent from Devon who has been told that if she does not remove something on the net - that she claims not to be responsible for - she will be imprisoned. Even as recently as June 19 the High Court was threatening a father with imprisonment if he did not take a photograph of his daughter off the internet.

A more complex diagnosis is that of shaken baby syndrome (SBS). This is where a doctor diagnoses that a baby has been shaken. There are a number of unproven hypotheses here. The first is that the presence of subdural haematomae and retinal haemorrhage (SHRH) demonstrate that in the absence of another known cause the infant has been shaken.

F. A. Bandak, however, wrote in Forensic Science International (30/6/2005): "We have determined that an infant head subjected to the levels of rotational velocity and acceleration called for in the SBS literature, would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine. Furthermore, shaking cervical spine injury can occur at much lower levels of head velocity and acceleration than those reported for the SBS.

"These findings are consistent with the physical laws of injury biomechanics as well as our collective understanding of the fragile infant cervical spine from (1) clinical obstetric experience, (2) automotive medicine and crash safety experience, and (3) common parental experience.

The findings are not, however, consistent with the current clinical SBS experience and are in stark contradiction with the reported rarity of cervical spine injury in children diagnosed with SBS. In light of the implications of these findings on child protection and their social and medico-legal significance, a re-evaluation of the current diagnostic criteria for the SBS and its application is suggested."

There is also the Geddes hypothesis that indicates that we should not rely merely on subdural haematomae and retinal haemorrhages to conclude that a baby has been shaken.

Some things are certain. It is certain that SHRH can occur spontaneously as a result of glutaric aciduria (an inherited disorder). The retrial of Ian and Angela Gay, accused of killing their foster son, was not just a salt-poisoning case, but also an SBS case. In that case the jury accepted that a too rapid hydration of the boy was the cause of SHRH.

The legal significance of SBS was considered in a "Daubert hearing" in Kentucky on April 17, 2006 - a Daubert hearing is where the court in the US considers whether or not the experts' opinion is certain enough for it to be used in a court of law. The Kentucky court concluded: "The Court can further conclude that based on the medical signs and symptoms, the clinical medical and scientific research communities are in disagreement as to whether it is possible to determine if a given head injury is due to an accident or abuse.

"Therefore, the Court finds that because the Daubert test has not been met, neither party can call a witness to give an expert opinion as to whether a child's head injury is due to a shaken baby syndrome when the child only exhibits a subdural hematoma and bilateral ocular bleeding.

"Either party can call a witness to give an expert opinion as to the cause of the injury being due to shaken baby syndrome, if and only, the child exhibits a subdural hematoma and bilateral ocular bleeding, and any other indicia of abuse present such as long-bone injuries, a fractured skull, bruising, or other indications that abuse has occurred."

In the UK, however, the family courts resist having more than one witness.

They see no need for any certainty as to whether or not the medical evidence being given satisfies any test equivalent to Daubert.

This is not an irrelevant point. Babies are continually removed from parents and parents imprisoned on the basis of unreliable expert opinion that has not been subject to the English equivalent of a Daubert hearing.

One of the worst aspects is that local authorities have been rewarded with millions of pounds of government money for increasing adoption numbers and they are paying for those experts. This can lead parents involved in such traumatic events to be concerned about the impartiality of the experts.

The Chief Medical Officer is establishing a new system for medical expert evidence. This will be an improvement. However, what we need is a formal mechanism for determining what is reliable evidence and what is not. The consideration of this evidence is being done time after time in lower courts in a big rush. What we need is a form of Daubert Test in either the Court of Appeal or House of Lords. We must stop the rush to flawed judgment resulting in destroyed lives (both through family destruction and wrong imprisonment). It may be quite profitable for the experts, but it is very damaging for society.

In particular we need public scrutiny of the reasoning in the family courts.

John Hemming is the Liberal Democrat MP for Birmingham Yardley and chair of the campaigning organisation Justice for Families.

(¹) Figures from DfES statistics. Rough estimate of number of babies given up based upon rapid uncontested adoptions under one year.