Shaken expert?

When one of the country’s foremost paediatric neuropathologists was struck off the medical register by the General Medical Council (GMC), due to the expert evidence she gave in relation to so-called shaken baby syndrome, ripples reverberated through divided medical and legal communities.

Human rights lawyer and director of Reprieve, Clive Stafford Smith called it ‘a very dark day for science, as it is for justice’ and in a letter to The Guardian, a group of doctors and eminent barrister Michael Mansfield QC accused the GMC of behaving like a ‘21st-century inquisition’.

While GMC chief executive, Niall Dickson, defended the action, stressing that ‘four senior judges had expressed strong criticisms’ of the way Dr Waney Squier had presented her evidence and noted that the tribunal found proved more than 130 allegations about her conduct.

The case reflects the split within the scientific community about the evidence over shaken baby syndrome, but it is likely to have huge ramifications on the future willingness of experts to put themselves forward to challenge what are regarded as the mainstream or majority opinions and consequently on the administration of justice.

Squier, who had been a consultant at the John Radcliffe hospital in Oxford for 32 years, was struck off the medical register by a GMC panel in March. She has appealed the ruling to the High Court, which will hear her case later in the year.

The Medical Practitioners Tribunal Service (MPTS) considered her work as an expert witness in cases where parents had been accused of killing their children, including the deaths of four babies and a 19-month-old child.

Squier disputed the existence of shaken baby syndrome, disagreeing with the majority view of how it is evidenced – the presence of a combination of three brain injuries, known as the triad — swelling of the brain, bleeding between the skull and the brain, and bleeding in the retina.

Squier holds a minority view that these injuries can occur in ways other than violent shaking, for example through accidental injuries caused by an infant falling over. She looks for more evidence than the triad before concluding that the injuries were likely to have been inflicted intentionally.

In each case Squier gave evidence that the injuries caused were not consistent with non-accidental injury, but were more likely to have been caused by other means.

Opening the case against Squier last year, counsel for the GMC, Tom Kark QC, said Squier’s conduct had been affected by her ‘preconceived and blinkered’ approach.

He said: ‘She failed in her overriding duty to the court to remain objective and to assist the court.’

The panel ruled that she had given irresponsible evidence outside her area of expertise, had ‘deliberately and dishonestly misinterpreted, misstated and misquoted research literature’ to support her opinion, and had brought her profession into disrepute.

It said she was ‘dogmatic, inflexible and unreceptive to any other view’ which led her ‘to misrepresent and cherry-pick from the literature’, adding that her attitude to her colleagues was ‘shocking, openly displaying your disdain for their expertise and opinions’.

Squier said she stood by her evidence and was ‘devastated’ by the result. She was reported as saying: ‘I’ve done my best to give an opinion based on my experience, based on the best evidence I can find to support my view.’

While the consequences for the doctor herself are severe, the case raises questions about the scope of an expert’s area of expertise and how far they should go to provide an overview of the research in the given area.

It also has serious consequences for the fairness of future trials. In a letter to The Guardian, Stafford Smith predicted that the case would have an ‘immense’ impact on medical science.

He posed the question: ‘What other doctor will be prepared to question the prosecution theory if it means the end of a career?’ and asked ‘how many parents and carers will be unjustly condemned’.

In a letter to the same paper, Dr Michael J Powers QC, a leading medico-legal practitioner and fellow of the Royal College of Physicians’ Faculty of Forensic and Legal Medicine, said the decision will have ‘a serious adverse effect on the administration of justice and lead to an increase in wrongful convictions of baby carers’.

‘The real danger created by this unjust regulatory decision is that few medical doctors now will dare to challenge mainstream opinion.

‘Simply reminding a court that in the absence of scientific evidence, one hypothesis is no better than another will be sufficient to put at risk an expert’s medical career,’ he said.

The GMC’s Dickson insisted that the panel had ‘no intention of being the arbiter of scientific opinion’ and that the allegations brought against Squier rested not on scientific theory, but on her competence and conduct in presenting her evidence to courts.

He told The Guardian: ‘In law we have a duty to investigate serious allegations of this nature and, if there is sufficient evidence to substantiate them, to present them before the autonomous Medical Practitioner Tribunal Service.’

Reminding expert witnesses of the standards expected, he said: ‘A doctor giving evidence in court is bound by the same standards as those in medical practice, and they are also bound by additional rules set by the court.

‘They must maintain patient and public trust by acting with honesty and integrity at all times, and their work should be rigorous and their opinion presented objectively and fairly’.

Countering the fears of the Stafford Smith and Powers, he stressed: ‘Far from wishing to suppress different views, we recognise that scientific advance is achieved by challenging as well as developing existing theories,’ adding that neither the courts nor the GMC was the place to resolve scientific disputes.

‘To be clear, it is possible that a doctor who ultimately was proved to have the correct theory could present their evidence in such a way as to mislead, just as it is possible for a doctor advocating a theory ultimately proved to be flawed to present their case in context and with integrity,’ he added.

But his words do not seem enough to allay the fears of other experts.

Marta Cohen, consultant histopathologist at Sheffield Children’s Hospital was referred to the GMC at the same time as Squier, after giving evidence in two family cases in which the judge had criticised her for being dogmatic, unbalanced, and not with the mainstream. The case against her was dropped, although she did for a time have restrictions, which have now been removed, put on her licence.

She says she is no longer prepared to act as an expert witness and says there are currently no expert witnesses prepared to act for the defence in shaken baby cases.

‘It is not safe. It is just too dangerous,’ she says.

Cohen is concerned by the fact that it was the police, who are part of the prosecution team, who reported both her and Squier, and not the judges who had been the ones who criticised them.

In addition, she points out that the adversarial nature of the English legal system means that where there are two opinions, the judge or jury will prefer one and reject the other. But that does not reflect on the individual expert whose opinion was rejected.

With no defence experts, she warns of the knock-on effect on justice. ‘Defendants will not have a fair trial, which is a breach of human rights, whether they are guilty or innocent’.

However, more generally, the chairman of the Expert Witness Institute, Sir Anthony Hooper, suggests things may not be so negative.

It is, he says, too early to assess the impact of the decision, particularly as Squier is set to appeal. He points to the fact that the EWI is ‘thriving and expanding’ and now has some 1,000 members.

Hooper reminds experts, giving evidence in civil or criminal proceedings, that they are subject to their professional codes of conduct and must comply with the law, including the various rules of court.

He suggests: ‘A person who is not prepared to face probing, critical and even hostile cross-examination should not act as an expert witness’.

A lot will hang on the outcome of Squier’s appeal, but whatever happens expert may still be too afraid to put their heads above the parapet to challenge mainstream views. This is certainly an area to keep an expert eye on.

Mark Solon is Director of Bond Solon (the UK’s leading expert witness training company) and Chairman of Wilmington Legal.

 

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