Expert
witnesses, suspect science and dead babies
http://www.spiked-online.co.uk/Articles/0000000CAC22.htm
Spiked
online - 27th June 2005
Why
have women been wrongly convicted of killing their children? Dr
James Le Fanu points the finger at medical experts. Below, Dr Michael
Fitzpatrick responds.
'Please,
if there is any way you could help with our situation, by yourself
or anyone you know, could you please get in touch. We can honestly
say, hand on heart, we haven't done anything to hurt our baby. We
are now been [sic] assessed and we got told [sic] that when we go
to the finding of facts hearing and we still insist we haven't done
anything, our twins will go up for adoption.' - Letter from
parent
'For
me, the unusual feature is death so soon after being seen well,
the fact that there have been previous deaths in the family and
the fact that he had had an episode of some sort only nine days
before he died that caused him to be assessed in hospital, because
those features are ones that are found really quite commonly in
children who have been smothered by their mothers. So the diagnosis
for me, the clinical diagnosis, would be this was characteristic
of smothering.' - Testimony of Professor Sir Roy Meadow, R
v Cannings, March 2002
The authority
of medicine derives from its science base, so it would be reasonable
to assume that doctors when called on to give their expert opinion
in court would have a thorough balanced grasp of the relevant scientific
evidence. The successful appeals of Sally Clark and Angela Cannings
against their convictions for child murder would suggest otherwise,
as does the recent ruling of the attorney general that a further
28 cases of parents convicted of smothering or shaking their children
are 'potentially unsafe'.
Nor can
that be all, for the attorney general's review was restricted to
the criminal courts, and thus does not take into account the several
hundred cases a year heard in the family courts whose less stringent
standards of proof ('balance of probability' rather than 'beyond
reasonable doubt') would further increase the risk of unsafe convictions.
Thus the medical advocacy of contentious theories of the mechanisms
of child abuse is likely to have been responsible for a systematic
miscarriage of justice on a scale without precedent in British legal
history - with devastating consequences for the parents wrongly
convicted. Here I offer a 'master theory' to explain how this extraordinary
situation has come about.
The
hidden epidemic of child abuse
Since Kempe's
description of the 'battered-child syndrome' in 1962, paediatricians
have become only too familiar with the burns, bruises, fractures
and neglect of the child victim of abusive physical assault. The
current concerns about the wrongful diagnosis of child abuse, however,
centre on a trio of very different clinical situations whose defining
characteristic might be described rather as one of uncertainty or
ambiguity.
Sudden infant
death syndrome (SIDS) - SIDS remains much the commonest cause of
unexpected death in childhood, whose primary aetiology, despite
much research, has proved elusive.
Childhood
injuries - children are by nature accident-prone but sometimes the
severity of their injuries might seem disproportionate to the explanation
provided.
Medically
unexplained symptoms - all doctors have patients whose signs and
symptoms are difficult to explain.
Doctors
are no different from anyone else in being reluctant to admit they
'do not know'. Why, for example, might SIDS affect two or more children
in the same family, or how might a seemingly trivial accident cause
an acute intracranial injury? Some might thus be unduly susceptible
to the notion that the uncertainties arise not from their lack of
knowledge or clinical skills but from parental concealment - that
each of these ambiguous clinical situations is potentially a form
of hidden or covert abuse inflicted by parents in such a way as
to hide their intentions from external scrutiny. Further, these
clinically ambiguous situations are not uncommon, which would suggest
that child abuse is both more prevalent than is widely appreciated
and perpetrated by even the most apparently respectable of parents.
Paediatricians clearly have a major responsibility in identifying
these concealed forms of abuse if they are to protect children from
further injury or death.
The
evidence for a hidden epidemic of child abuse
The proposition
that there might be a hidden epidemic of abusive injury of children
emerged in the 1980s with the description by British paediatricians
of two covert forms of child abuse - factitious illness and smothering.
Roy Meadow, in his pioneering paper on Munchausen's syndrome by
proxy, described two cases illustrating a phenomenon, familiar now
but puzzling at the time, where mothers sought the sympathy of doctors
and nursing staff by fabricating the symptoms of a perplexing illness
in their child that warranted repeated hospital admissions and investigative
procedures. In the first case the mother contaminated her six-year-old
daughter's urine specimens to simulate recurrent urinary tract infections,
while in the second the mother fed her six-week-old son high doses
of salt, causing him to be admitted to hospital several times with
'unexplained' hypernatraemia. Four years later Meadow reported a
further series of 19 cases in which 'fraudulent clinical histories
and fabricated signs' encompassed the entire spectrum of paediatric
illness - bleeding from every orifice, neurological symptoms of
drowsiness, seizures and unsteadiness, rashes, glycosuria, fevers
and 'biochemical chaos'.
The implications
of Munchausen's syndrome by proxy were twofold: it alerted doctors
to the possibility of fabricated illness as a potential differential
diagnosis in children with unexplained symptoms. But it also demonstrated
how the seemingly most devoted of parents might, in reality, be
potential child abusers. Meadow himself, commenting on the mothers
in the cases he described, observed how they were 'very pleasant
to deal with, cooperative and appreciative of good medical care'.
David Southall's
innovative technique of covert video surveillance for investigating
apnoeic episodes in children vividly confirmed the sinister reality
of hidden abuse. Now paediatricians attending meetings and conferences
could see for themselves the blurry black and white images of mothers
caught in the act of smothering or choking their babies. Southall's
study widened the spectrum of child abuse in two significant directions.
It offered, in smothering, a plausible explanation for why a child
might experience recurrent acute life-threatening events necessitating
urgent admission to hospital. And it emphasised, once again, the
possibility that some at least of those children whose deaths were
labelled as SIDS might have been the victims of smothering. Southall
in a further report of 30 children undergoing covert video surveillance
identified 12 siblings who had died unexpectedly, eight of whom
the parents subsequently confessed to having smothered. Thus parental
smothering must be a clear possibility in any child with recurrent
acute life-threatening events where there has been more than one
unexplained childhood death in the family.
The
hidden epidemic revealed
There could
be no doubt following Meadow and Southall's findings that paediatricians
must have been missing a substantial number of cases of child abuse
and would in future need to be much more alert to the possibility
of parental harm where the diagnosis was not clear. Frequently,
however, such suspicions could not be confirmed with the sort of
direct evidence provided by techniques such as covert video surveillance.
So how could doctors be confident that covert abuse was the cause
- and convince others to take the necessary steps to protect the
child from further danger?
Significantly,
there were certain similarities in the signs and symptoms of children
with these clinically ambiguous situations and those recorded in
well-authenticated forms of abuse such as smothering, poisoning
and abusive head injury. Thus it seemed reasonable to infer, by
extrapolation, that these presentations were 'characteristic' of
covert forms of abuse which could then be confidently diagnosed
- even in the absence of any other circumstantial evidence such
as bruises, signs of neglect or parental history of violence. During
the 1980s the trio of clinically ambiguous situations would become
redesignated as 'child abuse syndromes'. A key influence was 'Meadow's
rule' regarding SIDS. While the absence of reliable pathological
findings made it difficult to distinguish SIDS from smothering,
Meadow argued that two or more childhood deaths in the same family,
along with a recognisable 'pattern' of events (such as previous
acute life-threatening episodes) was strongly suggestive of infanticide:
'two is suspicious and three murder unless proved otherwise...'.
Another
was the proposal that two specific presentations of childhood injury
were 'characteristic' of abusive assault. Caffey's original description
of shaken baby syndrome suggested that the whiplash effect of vigorous
shaking offered a 'reasonable explanation' for the presence of subdural
and retinal haemorrhages in severely abused children. The imagery
of how the violent to-and-fro movement of the baby's head could
cause bleeding of the vessels of the eye and brain proved very persuasive,
and it seemed logical to infer that any child presenting with retinal
and subdural haemorrhages must have been shaken - despite the absence
of other circumstantial evidence of abuse.
Similarly,
Caffey attributed a radiological 'bucket handle' appearance of the
metaphyses of the long bones in severely abused children as being
due to a 'twisting and wrenching' of the child's limbs by the parents.
Subsequently, it was suggested that those children in whom abuse
was suspected should have a skeletal survey for similar 'suspicious'
metaphyseal lesions that were interpreted as being characteristic
of abusive assault - again, despite the absence of clinical signs
of fracture or subsequent radiological evidence of healing. A third
was a widened case definition for Munchausen's syndrome by proxy.
Meadow, in his initial series, had confirmed the diagnosis either
by covert surveillance or by confronting the perpetrator and obtaining
a confession. In a widened definition the presence of 'diagnostic
pointers' was proposed for use in children with medically unexplained
symptoms. They included:
Parents
unusually calm for the severity of illness;
Parents
unusually knowledgeable about the illness;
Parents
fitting in contentedly with ward life and attention from staff;
Symptoms
and signs inconsistent with known pathophysiology;
Treatments
ineffective or poorly tolerated.
The
hidden epidemic confirmed
These novel
child abuse syndromes, taken together, represented a major conceptual
breakthrough in paediatrics. The uncertainty of clinically ambiguous
situations had given place to the certainty of the single unifying
and plausible diagnosis of covert abuse. The scale of the hidden
epidemic then turned out to be substantially greater than had been
expected, with a fourfold increase in the number of child abuse
cases in the 10 years from 1978 to 1988. This was reflected regionally
in an increase from 40 to over 200 cases a year in the City of Leeds
while, by the end of the decade, an extra 7,500 children every year
were being placed on the child protection register on the grounds
of physical abuse.
Nonetheless,
the facility with which the syndromes could bring to light covert
abuse concealed from view their poor evidential basis. The causal
link between the putative mechanism of assault and subsequent injury
could be neither independently confirmed nor experimentally investigated.
It might seem reasonable to extrapolate from the presence of retinal
and subdural haemorrhages in the battered child that these features
had the same significance in a child with no other circumstantial
evidence of injury. Certainly the powerful imagery of violent shearing
forces disrupting the blood vessels was persuasive, but shaking
has never been directly observed or proven to cause such injuries;
the supposition that they do is based on (contested) theories of
biomechanics.
Rather,
the legitimacy of the syndromes was predicated on two related and
highly improbable assumptions, scientific and legal. The scientific
assumption was that there could be no other explanation, either
known or that might be discovered at some time in the future, that
might explain these 'characteristic' presentations. Meadow's 'rule',
for example, precluded the possibility that there might be some
unknown genetic explanation for multiple unexpected childhood deaths
in the same family, while the 'characteristic' pattern of shaken
baby syndrome precluded the possibility of some alternative explanation
for the retinal and subdural haemorrhages - such as an acute increase
in retinal venous pressure from intracranial bleeding caused by
accidental head injury. The legal assumption presupposed that these
presentations were so specific for abuse that they were by themselves
sufficient to secure a conviction - even in the absence of the sort
of circumstantial evidence of violence or neglect that would normally
be required to return a guilty verdict in a court of law.
Put another
way, the 'characteristic' presentations of the syndromes could not
sustain the interpretation placed upon them: they might be 'consistent
with' but could not, by themselves, be 'diagnostic of' child abuse.
Thus some at least of the parents contributing to the statistics
of the fourfold rise in child abuse were likely to be innocent.
Three additional factors, in particular, bolstered the credibility
of the syndromes in the family and criminal courts.
The
authority of the child abuse expert
By the close
of the 1980s, the leading experts in child abuse had acquired an
international reputation and were thus called on to instruct and
educate not just their fellow paediatricians but also the police,
lawyers, social workers and judges in the child abuse syndromes.
Their persuasive expert opinion, when expressed in court, was guaranteed
a sympathetic hearing, while their confidence in the syndromes they
had discovered was virtually unchallengeable. Further, they could
scarcely accept the force of contrary evidence since to do so would
require them to concede that their expert testimonies might, in
similar cases, have resulted in wrongful conviction. Meanwhile the
costs of the process of investigating allegations arising out of
the child abuse syndromes rose to an estimated £1billion per
year, with the more prominent experts receiving fees for the preparation
of their reports and appearances in court in excess of £100,000
a year.
The
circular argument of successful convictions
The validity
of the child abuse syndromes would appear to be confirmed by the
high proportion of successful convictions that followed the courts'
careful scrutiny of the allegations against parents. These convictions,
however, came to rely increasingly on a circular argument - whereby
the main evidence for the child abuse syndrome of which the parents
were accused was that parents had been convicted of it in the past.
Thus parents whose child presents with subdural and retinal haemorrhages
are accused of inflicting shaken baby syndrome because, in the vast
majority of cases, parents of children with subdural and retinal
haemorrhages are convicted of causing shaken baby syndrome. Similarly,
Meadow argued that 'the likelihood that the court verdicts about
parental responsibility for [causing their children's death] were
correct was very high indeed', without making clear that it was
his expert testimony that repetitive SIDS was 'murder unless proved
otherwise' that had been a major factor in securing those convictions.
There is
a further element of circularity in the presumed pathogenesis of
the syndrome of which the parents are accused. The theory of shaken
baby syndrome presupposes that violent, abusive force (comparable,
it is claimed, to that sustained in a high-speed road traffic accident
or a fall from a second storey window) is necessary to cause retinal
and subdural haemorrhages. The parents are then caught in the catch-22
of either confessing to the alleged assault (for which they might
be offered the inducement 'if you say you did it we will let you
have your child back') or denying it, in which case their denial
is evidence they must be lying about the events surrounding their
child's injury, which is then further evidence of their guilt.
The
silencing of parents
The forces
of expertise ranged against the parents were formidable enough,
but it is apparent too from their personal accounts that they were
subjected to a series of intimidatory tactics to silence their protestations
of innocence and deny the validity of their testimony as the only
witnesses of the circumstances surrounding their child's injury
or death. Thus parents describe how, when summoned to see the consultant
to learn (they presume) about their child's progress, they were
'ambushed' with the diagnosis of, for example, shaken baby syndrome,
presented to them as irrefutable fact ('your son must have been
violently shaken for several minutes to cause these injuries') without
any suggestion that there could be some alternative explanation.
The prompt
involvement of the police and social workers would lead to further
accusatory interrogations that begin from the principle that the
parents must be guilty - as the doctors would not have made such
serious accusations if they were not convinced they were true. The
transcript of these interrogations would subsequently be turned
against them in court so that any inconsistencies in their explanations
of how their child's injuries might have occurred were then presented
as evidence of their efforts to conceal their guilt. Parents describe
the same pattern of events where they would only be informed late
on a Friday evening that a preliminary court hearing had been arranged
for the following Monday morning - thus leaving them the weekend
to find a lawyer (who was unlikely to have any expertise in this
field) to contest their child being taken into foster care.
These psychological
tactics were a prelude to the yet more powerful intimidatory weapon
of technical obscurantism - the description of their child's injuries
and couching of the charges against them in a language in which
the professionals were fluent but the bewildered parents were not.
How could they hope to dispute the allegations when they did not
know what was being talked about? Parents are of course entitled
to seek their own expert opinion, but soon discovered that the overwhelming
consensus about the validity of the child abuse syndromes meant
it was very difficult to find anyone to argue in their defence;
or worse, the expert reports they requested were actively detrimental
to their case.
This silencing
of parents was made more effective still by the rules of confidentiality
that wrap the proceedings of the family courts in a cocoon of secrecy,
making parents liable to a charge of contempt of court if they sought
advice or support from anyone not directly involved in their case.
This secrecy in turn protected the proceedings of the court, and
in particular the testimony of expert witnesses, from external scrutiny
while concealing from public view the spectacle of so many apparently
respectable parents being convicted of inflicting these terrible
injuries on their children - without any circumstantial evidence
that they had done so.
The
unmasking of the child abuse syndromes and the crisis for paediatrics
For parents
there was no escaping their fate. From the moment of the initial
allegation against them, the alliance of medical experts, police,
social workers and an unsympathetic judiciary - well organised,
experienced and well financed - meant that their eventual conviction
was almost a foregone conclusion. Nonetheless, the two assumptions,
scientific and legal, of the specificity of the syndromes as being
diagnostic of abuse remained as insecure as ever, with the courts'
willingness to convict parents in the absence of circumstantial
evidence of abuse resting almost entirely on their faith in the
reliability and trustworthiness of medical expert opinion.
The first
sign that such faith might be misplaced came in 2003 during Sally
Clark's successful appeal, with the revelation of 'fundamental errors'
in the testimony of Meadow and other prominent experts that had
resulted in her original conviction. Their credibility was further
undermined by Justice Judge's Appeal Court ruling exonerating Angela
Cannings of murdering her two children. Justice Judge dismissed
the central plank of the prosecution case, Meadow's claim that there
had been a 'pattern of events' leading up to the deaths of children
that was 'characteristic' of smothering: 'We doubt the aptness of
the description "pattern"...the history of each child
was different from every other child.' Further research would refute
Meadow's claim (as reflected in his 'rule') that recurrent SIDS
in the same family was 'extremely rare' - in other words, that in
such cases the cause was likely to be unnatural. On the contrary,
a follow-up study of SIDS families found two or more deaths in the
same family to be 'not uncommon' with the overwhelming majority
(80-90 per cent) due to natural causes. There are, it has subsequently
emerged, several genetic mechanisms that could account for recurrent
SIDS including congenital visceroautonomic dysfunction and cardiac
dysrhythmias.
Similarly,
further research has undermined the validity of retinal and subdural
haemorrhages as being characteristic of shaken baby syndrome, with
an evidence-based review finding 'serious data gaps, flaws of logic
and inconsistency of case definition' in the relevant scientific
work. Shaken baby syndrome was not, as its name implied, a 'syndrome',
but rather encompassed several different forms of brain injury,
with different clinical history and neuropathology, involving some
mechanism other than shaking to account for the presence of retinal
haemorrhages. Thus a series of independently witnessed accidents
confirmed that, as parents had maintained, minor falls could cause
an acute subdural bleed with the retinal haemorrhages being due
to a sudden rise in retinal venous pressure. Further, parental histories
of a preceding episode of respiratory collapse were compatible with
the very different pathological findings of anoxic brain damage,
with disturbance of the microcirculation causing thin subdural and
retinal haemorrhages.
Meanwhile,
the widened definition of Munchausen's syndrome by proxy based on
'diagnostic pointers' has also resulted in wrongful convictions,
with the child's unexplained symptoms proving to be due to some
rare or unusual medical condition with which the doctor was not
familiar. Subsequently the syndrome would be renamed 'factitious
illness' in recognition of the fact that, while some parents may
fabricate the symptoms of their child's illness, the combination
of unexplained symptoms and the mother's personality profile did
not constitute a syndrome of abuse. Finally, radiologists' misinterpretation
of normal variants of ossification in the first year of life as
being metaphyseal fractures accounts for the obvious discrepancy
between the findings of multiple fractures on skeletal survey and
the absence of any clinical signs of abusive injury.
This serial
collapse of the improbable scientific assumption that there could
be no explanation other than abuse for the characteristic presentation
of these syndromes has exposed in turn the equally improbable legal
assumption that, contrary to sound judicial practice, it is possible
to convict parents without there being additional circumstantial
evidence or reasonable motive for their abusive intentions. Thus
Justice Judge would, in his exoneration of Angela Cannings, draw
attention to 'the absence of the slightest evidence of physical
interference which might support the allegation she had deliberately
harmed them'. And, again, he emphasised how 'the absence of any
indication of ill temper or ill treatment of any child at any time'
and 'the evidence of both her family and outsiders about the love
and care she bestowed on her children' made it extraordinarily unlikely
that she might have smothered them. Justice Judge's exoneration
of Angela Cannings' character as a loving mother focuses attention
on the moral and judgmental dimension of the child abuse syndromes,
arising from extrapolation from Meadow's original description of
Munchausen syndrome by proxy, that all parents are potential child
abusers. Is this extrapolation plausible? The psychological profile
of those who unambiguously have harmed their children reveals, as
would be expected, them to be psychopaths, criminals, opioid abusers,
alcoholics and so on. So when parents such as Angela Cannings, with
no blemish on their character, appear as loving, concerned parents,
the likelihood must be that it is because they are loving concerned
parents - and very powerful evidence is required to argue otherwise.
Meadow and
the proponents of the child abuse syndromes necessarily take the
contrary view, and in so doing are required to portray parents'
protestations of innocence as deceitful. That moral judgment, together
with the failure to recognise that medical knowledge may be incomplete,
meant that Angela Cannings' wrongful conviction for infanticide
was almost inevitable. The question remains how many other parents
have similarly been wrongly convicted of the terrible crime of injuring
their children, and been robbed of their families, livelihoods and
good name.
Read
Dr Michael Fitzpatrick's response to Dr James Le Fanu
Pathologist
in Sally Clark trial is found guilty of misconduct 4th June 2005
