The privilege of providing opinion evidence during legal proceedings is extended only to experts. This role is a significant responsibility for paediatricians working in child protection. Medical experts are required to assist the court in understanding matters beyond the knowledge or experience of ordinary citizens. They are considered experts if appropriately credentialed and if the area of expertise is recognised to fall within a defined body of knowledge. These parameters recognise the significant influence of opinion evidence on the jury and aim to safeguard the legal process to ensure justice is served. Within criminal law, penalties are severe. Recent cases have highlighted the challenges involved for medical experts where medical opinion was inaccurate and led to significant consequences to individuals involved as well as impacting on the reputation of the profession.1 It is imperative that we develop appropriate systems which enable continuity of a skilled paediatric workforce in child protection that allows sound decision-making in child protection matters while ensuring adequate safeguards are in place to protect the reputation of individuals and uphold public confidence in the profession.
In 1999, the criminal trial of solicitor Sally Clark in the United Kingdom threw the spotlight onto paediatricians working in child protection.2 Sally Clark was convicted on 9 November 1999 of murdering her two sons Christopher and Harry aged 11 weeks and 8 weeks of age by a majority of 10 to 2 and was incarcerated in jail. She appealed the conviction in October 2000 on the grounds of Professor Roy Meadow's expert evidence in relation to misrepresentation of statistics, which was at that time initially dismissed by the Court of Appeal. However, a further appeal to the Supreme Court of Appeal in July 2002 concluded that her convictions were unsafe. In January 2003, the convictions were set aside and Sally Clark was freed. She attempted to resume her life caring for her surviving son but she passed away in March 2007, allegedly from an overdose, said to be a result of the legacy of her wrongful imprisonment. Many in the public blamed Professor Meadow for this tragic outcome and these events have had a lasting negative impact on the profession.3
Professor Sir Roy Meadow had testified during the trial for 5 days which included at times lengthy and hostile cross-examination by defence.4 Although neither the prosecution nor defence was advancing the theory that either of the children had died of Sudden Infant Death Syndrome (SIDS), Meadow was asked what was the chance of both infants having died of cot death. Meadow concluded that a chance of a second natural death was miniscule, amounting to 1 in 73 000 000. He had derived these figures from a table which formed part of the Confidential Enquiry into Sudden Death in Infancy which reported the risk of a single SIDS death in such a family was 1 in 8543. Meadow was then asked to specify the risk of two infants dying of SIDS in a given family by chance. He replied:
‘Yes, you have to multiply 1 in 8543 times 1 in 8.543 and I think that it gives that in the penultimate paragraph. It points out that it's approximately a chance of 1 in 73 million.. . . . . . . .That is why you end up saying the chance of the children dying naturally in these circumstances is very, very long odds indeed, one in 73 million.’
He then added:
‘It's the chance of backing that long odds outsider at the Grand National. You know, let's say it's a 80 to 1 chance, you backed the winner last year, then the next year there's another horse at 80 to 1 and it's still 80 to 1 and you back it again and it wins. Now here we're in a situation that, you know, to get to these odds of 73 million you've got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it's just been a 1 in 80 chance and you know, you've happened to have won it, but the chance of it happening four years running we all know is extraordinarily unlikely. So it's the same with these deaths. You have to say two unlikely events have happened and together it's very, very, very, unlikely.’
The assumption underlying this calculation of odds of two infants dying in the same family from SIDS assumed that the two events would be independent. Many experts including the Royal Statistical Society subsequently criticised Meadow for his misuse of statistics to support his opinion.5 Statisticians argued that if the background evidence of double death rates as a result of cot death is relevant, then surely too should be the background evidence of double death rates as a result of murder. To present either of these figures without some assessment of the other would be both prejudicial and irrational. It was apparent that these figures did not take into account the possibility of familial factors such as inherited disorders and the evidence was based on what is referred to in the legal profession as ‘the prosecutor's fallacy’. This can be summarised as the probability of two deaths, given innocence equating to the probability of innocence.6 The media coined the term that became known as ‘Meadow's Law’–‘that one sudden infant death is a tragedy, two is suspicious and three is murder, unless proven otherwise’.4
At the conclusion of the trial in 1999, seven medical experts were asked to provide their final opinion on the cause of death of each of the infants.2 Following hearing medical evidence in relation to Christopher, Dr Alan Williams, the Home Office pathologist who had performed both post-mortems on the infants, stated he believed smothering to be the most likely cause of death. Meadow stated that in his opinion, Christopher had died an unnatural death. Four other experts gave the opinion that Christopher's cause of death was unascertained. Following detailed evidence and cross-examination of opinions in relation to the medical findings from Harry, Williams concluded that in his opinion, the most likely cause of death was shaking. Meadow stated that in his opinion, the death was not because of SIDS and was not a natural death. All six other experts called to give evidence used the terms ‘unexplained’, ‘unascertained’ and felt both accidental trauma and non-natural death were possible. Regarding the evidence of Harry, only Williams and Meadow dissented and categorically excluded natural causes as possible causes of death.
Following the trial verdict, the British Medical Journal (BMJ), the respected professional journal of the prestigious British Medical Association, published a paper in January 2000 openly criticising the statistical evidence given by Meadow in the Clark trial.7 In January 2002, the BMJ published Meadow's response,8 admonishing the journal for publishing the editorial with the sensational title ‘Conviction by mathematical error?’. Meadow reminded readers of the failure of the Court of Appeal (on the first appeal in 2000) to overturn Clark's conviction on the basis of his expert evidence. In Meadow's paper ‘A case of murder and the BMJ’, he lamented that the family had the right to complain to various authorities which would consume considerable resources.
While Sally Clark remained in jail in 2002, it came to light by discovery from her defence team that Dr Alan Williams, the pathologist who had performed the post-mortems on both Harry and Christopher, had taken post-mortem swabs and samples from Harry's faeces, stomach tissue and fluid, blood, lung tissue, bronchus, throat and cerebrospinal fluid.2 He had failed to include in his report and evidence that he had isolated a certain strain of Staphylococcus aureus from all these sites in conjunction with markers of an inflammatory response. He had believed the findings to be a result of a contaminant and irrelevant to his opinion of cause of death. The two points put before the Court of Appeal during the second appeal was Williams' failure to disclose information contained in the microbiological reports as well as the statistical information given to the jury by Meadow about the likelihood of two sudden and unexpected deaths of infants from natural causes.
At this time, Professor Morris, an expert consultant and pathologist who had not been called in the original trial, was then asked by defence to provide an opinion regarding the relevance of these findings.2 Morris disagreed with Williams' opinion and indicated that in his opinion, Harry's most likely cause of death was an overwhelming staphylococcal infection. An additional expert called before the Court of Appeal also concurred with Morris' opinion. Following deliberation, the Court of Appeal concluded that, given this new evidence which had not been put before the jury, this may have caused them to reach a different verdict in respect of Harry. The verdict on that count was viewed by the Court of Appeal as unsafe and was therefore quashed. Given that it had been determined that Harry's death may have been from natural causes, it followed that no safe conclusion could be reached that Christopher was killed unnaturally. The convictions of Sally Clark were set aside in January 2003 following 3 years in jail. The Crown declined to seek a retrial, a decision which was endorsed by the Court of Appeal.
Of his failure to disclose the microbiological findings in relation to Harry, Williams was heavily criticised by medical experts, referring to this as an error of judgment, with some even stating that it amounted to substandard medical practice. Intense public condemnation focused on the critical role of Meadow in these miscarriages of justice which were heavily reported in the media.4
Following the overturning of Sally Clark's conviction, the Court of Appeal responded to public speculation about whether other convictions of mothers killing their babies where the babies had died suddenly were similarly unsafe.9 They ordered a reassessment of all trials in which Meadow had testified. Twenty-eight cases were referred to the Criminal Cases Review Commission to investigate possible miscarriages of justice.
The trial of Angela Cannings in April 2002 occurred around the time Sally Clark's first appeal had failed.10 Angela, a shop assistant from Wiltshire, had lost three babies to SIDS, though she was charged with murder for only two of them. The medical evidence was even weaker than in the Clark case but she was convicted of double murder. Meadow again had appeared as an expert witness but made no direct reference to statistics. He had however stated in evidence that three cot deaths ‘were very, very rare’. Angela's convictions were quashed after she had served 18 months in jail. The judgment from the Cannings appeal highlights critical issues with regard to expert medical evidence:11
‘It would probably be helpful at the outset to encapsulate different approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained and for each of which there is no evidence extraneous to the expert evidence, that harm was or must have been inflicted (for example, indications or admissions of violence or pattern of ill treatment). Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known facts that some parents do smother their infant children, possible natural deaths. Much depends therefore, on the starting point which is adopted. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event . . . At the very least, it appears to us to coincide with the views of the reputable body of expert medical opinion.’
‘Mrs Cannings' defence was simple: she had done nothing to harm any of her children. Although she was contending that the deaths were natural, notwithstanding specialist evidence called on her behalf at trial, she could not explain them, and she was not seeking to offer an explanation of her own. And, unusually, she was doing so in the very special context that medical specialists, both domestically and internationally, continued to acknowledge that the death of an infant, or infants at home, can simultaneously be natural and unexplained, even by them.’
‘In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise and therefore unsafe to proceed. In expressing ourselves in this way, we recognize that justice may not be done in a small number of cases where in truth a mother has deliberately killed her baby without leaving any identifiable evidence of the crime. That is an undesirable result which however avoids a worse one. If murder cannot be proved, the conviction cannot be safe. In a criminal case it is simply not enough to be able to establish even a high probability of guilt. Unless we are sure of guilt the dreadful possibility always remains that a mother, already brutally scarred by the unexplained death or deaths of her babies, may find herself in prison for life for killing them when she should not be there at all. In our community, and in any civilized community, that is abhorrent.’
Trupti Patel's trial occurred between the successful appeals of Clark and then Cannings.10 When she was first arrested, the outlook for her looked bleak. Clark and Cannings were serving life sentences for double murder and Trupti, a pharmacist from Berkshire, was accused of suffocating three of her babies. This time, a statistician was asked to provide a report which estimated the relative chances of cot death or murder given that two or more sudden deaths have occurred.6 This was presented as:
Single cot deaths outnumber single murders by about 17 to 1.
Double cot deaths outnumber double murders by about 9 to 1.
And triple cot deaths outnumber triple murders by about 2 to 1.
This evidence highlighted that while each successive death gives rise to some slightly increased suspicion of harm, this was nothing like the extent that Meadow's law would imply. In particular, when multiple sudden infant deaths have occurred in a family, there is no initial reason to suppose that they are more likely to be homicide than natural. In the Patel case, there was additional evidence of probable genetic links with a history of unexplained infant deaths on both sides of the family. A key witness at trial was Trupti's 80-year-old grandmother flown in from India to testify that five of her 12 children had died within 6 weeks of birth. Donna Anthony, who had served 6 years after being wrongfully convicted of killing her son, was also freed around this time.6
Following the appeal of Cannings and the review of all Meadow's cases, an expert committee was formed to consider how future sudden infant deaths should be investigated. The Kennedy report was published in September 2004 recommending a new national protocol. One of its aims was to ensure that the tragedy of losing children is never again compounded by innocent parents being accused of their murder. In defiance of Meadow's Law, one journalist who had played a vital role inthe pursuit of justice for the cot death mothers published the headline:12
One cot death is a tragedy, two cot deaths is a tragedy and three cot deaths is a tragedy.
Following the release of Sally Clark in January 2003, her father Frank Lockyer brought complaints of serious professional misconduct to the Fitness to Practice Panel (FPP) of the General Medical Council (GMC), the regulatory body that oversees the practice of medical practitioners in the United Kingdom. It was alleged that the evidence Professor Meadow had given to the criminal courts had been badly flawed, particularly his misuse of statistics and had unduly influenced the jury's decision.13 Following a hearing lasting 16 days during June and July 2005, the FPP found serious professional misconduct proved and ordered his name to be erased from the medical register.14
What followed was a substantial outcry from the paediatric profession including Professor Alan Craft, president of the Royal College of Paediatrics and Child Health.15 He informed the GMC panel of the enormous effect of these events on the profession because of increasing reluctance of paediatricians to produce reports and give evidence in courts, or to take posts which involved responsibilities in child protection.16 The role of the media in reporting such cases was also highlighted and the effect such campaigns have on those doctors who work in the field of child protection.3
Backed by his profession, Sir Roy Meadow launched an appeal against the ruling of the GMC and in February 2006, High Court judge Justice Collins found in his favour, ruling against the decision to strike him from the medical register.14 This judgment highlights mechanisms in place to protect paediatricians working in child protection. Justice Collins stated that although the GMC had been right to criticise him, Meadow's actions could not be properly regarded as ‘serious professional misconduct’. Recorded in his lengthy judgment, Justice Collins clarified the jurisdiction of the GMC and the extent to which immunity would be provided to experts who provide opinion evidence in legal proceedings. He clarified that expert evidence given in good faith would provide the expert with immunity from civil suits. Such immunity extends to any statement of a witness given in a court of law, provided perjury is not able to be proven. This, he said, was because of:
‘. . . the overarching public interest which can be expressed as the need to ensure that the administration of justice is not impeded. This is the consideration which should be paramount . . . As an expert witness owes a duty to the court which overrides that to his client, he/she should not be vulnerable to claims from disgruntled clients.’
Justice Collins recognised that potentially the possibility of disciplinary proceedings based on a complaint by someone affected by the evidence given has a serious deterrent effect (as described by Professor Craft) including penalties which could be more serious than an award of damages and have far-reaching effects on the profession at large. He concluded that, based on the same underlying principle of the public policy need to protect the administration of justice, immunity from sanction should therefore be extended to professional disciplinary proceedings. He stated:
‘in the interests of the judicial system, a witness should not be exposed to the risk of having his or her evidence challenged in another process. . . . . . .There can be no doubt that the administration of justice has been seriously damaged by the decision of the FPP in this case and the damage will continue unless it is made clear that such proceedings need not be feared by the expert witness.’
While the extent of the immunity falls short of an absolute immunity, what was of fundamental importance is that a witness can be assured that if he gives evidence honestly and in good faith, he will not be involved in any proceedings brought against him seeking to penalise him.
Professor David Southall also found himself before the FPP of the GMC in relation to the Clark trial following a complaint filed by Steven Clark.17–19 Although Southall did not provide evidence in the trial, following Clark's conviction he had watched a documentary of the case on television and became concerned that it may have been the father who had been responsible for the infants' death rather than Sally Clark. He contacted police on this basis and a child protection assessment was instigated by the Family Court to assess the safety of the Clark's third son who was now in the sole care of Steven Clark while Sally remained incarcerated.20 Southall had an extensive history of working in child protection and had developed expertise in the diagnosis of deliberate suffocation in infants.21 Based on his clinical experience, he had observed a temporal relationship between bleeding from the oropharynx and attempted suffocation. He believed that if it could be proven that Christopher had been in the sole care of Steven Clark when he had suffered a nose bleed, then this potentially was because of an attempted suffocation and could lead to Sally Clark being exonerated. This information was assessed by the police and the Family Court who appointed Professor David, a consultant paediatrician to independently review the medical evidence in the Clark trial to enable the Family Court to determine whether the Clark's remaining son remained at similar risk.2 Mr Clark brought a complaint regarding Professor Southall to the GMC FPP panel on the basis of his report of reasonable suspicion to the police.20 In relation to this matter, Professor Southall was found guilty of serious professional misconduct and was disallowed from working in child protection for 3 years.22 On 23rd July 2007 the FPP determined that the period of conditional registration should be extended for a period of twelve months. In September 2008 all conditions on Dr Southall's registration were revoked.23
Dr Williams was also brought before the GMC FPP and was found to be guilty of serious professional misconduct. He was heavily criticised by the Court of Appeal in relation to his quality of post-mortems for the Clark infants, his standards of practice including record-keeping and forensic reports. He was banned from working in the Home Office as a pathologist for 3 years.2
In November 2007 in Australia, the Victorian Supreme Court judgment of committal proceedings of R versus Matthey11 concluded there was insufficient evidence to proceed with a criminal trial of Carol Matthey in relation to the death of her four children: Jacob aged 7 months, Chloe aged 10 weeks, Joshua aged 3 months and Shania aged 3.5 years. A large part of the judgment focuses on the role of expert medical evidence, in particular, what is the province of the expert and what is beyond the boundaries of expertise and is better the province of the jury, known as the ultimate issue. A range of experts were involved in the case, including a consultant paediatrician called by the Crown and a paediatric forensic pathologist. They both started from the proposition that if no identifiable cause of death can be determined from post-mortem findings, then the cause of death should be assigned as a result of homicide, specifically suffocation. This is once again the prosecutors' fallacy – basing the determination on the statistical unlikelihood of four deaths in one family.
Professor Stephen Cordner from the Victorian Institute of Forensic Medicine was also called to give expert evidence. He criticised the assumptions, reasoning and conclusions of other experts and emphasised the need for medical conclusions to be based on the medical facts, not circumstances extraneous to the autopsy findings. He emphasised that Jacob, Chloe and Joshua's medical findings were all consistent with SIDS and Shania's (the 3.5 years old) cause of sudden death was unascertained. He stated:
‘It is wrong on the forensic pathology available to conclude that one or more of the Matthey children are victims of homicide. There is no merit in forcing certainty where uncertainty exists. The very existence of the enigma of SIDS demonstrates how little we know about why some babies die. It is not for a pathologist to conclude that a number of infant or childhood deaths, with no significant pathological findings at all, are homicides on the basis of controversial circumstantial grounds. If this case is to result in a prosecution, I want to clearly state there is no pathological basis for concluding homicide. The findings are perfectly compatible with natural causes.’
He emphasised that while the findings could not rule out smothering in one or more of the cases, it was important that in Shania's case, absolutely no signs of asphyxia or compression of the face were present. He agreed with other pathologists that signs of injury in suffocated babies are rarely observed. He emphasised that the diagnosis of SIDS is one of exclusion.
‘If a condition is found at autopsy which is capable of causing death and which accords with the circumstances, it is elevated to the cause of death. There is a limit to what can be done to exclude other causes of death. For example, there are dozens of minor genetic mutations causing potentially fatal cardiac arrhythmias or other mutations causing submicroscopic abnormalities to heart muscles. The emotional weight of the case outweighs the fact that the same pattern could occur in older children or young adults and the conclusion we would all come to would be inherited arrhythmic disorder.’
The Supreme Court criticised prosecution experts whose submissions to the court trespassed upon the province of the jury in their determination of the ultimate question of whether the Crown had proved beyond reasonable doubt that the accused deliberately suffocated each of her children. For expert evidence to be admissible, the opinion must be based on facts observed by the expert. For assumed or accepted facts, they must be identified and proved in some other way and it must be established that the facts on which the opinion is based form a proper foundation for it. The basis of the opinion must be made explicit and fall in specialised expert knowledge, not on a combination of speculation, inference, personal and second-hand views as to the credibility of the accused. ‘An expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law.’11
During the late 1980s, practices of child protection paediatricians had also come under similar public scrutiny in what became known as the Cleveland Child Sexual Abuse Scandal.24 To many, the paediatricians involved had abused and misused professional power, with grave consequences. In 1987, two paediatricians in a working class population in North-East England suddenly began reporting cases of what they believed were alleged sexual abuse of children on the basis of the anal dilatation test. At the beginning of that year, the numbers of children reported to social services had escalated reaching a peak some 7 months later. Once the allegations had been made, social workers removed these children from their homes on Place of Safety Orders, often in midnight and dawn raids, and placed the children in foster care and residential homes. The initial crisis came when there were no more foster homes or residential home placements to accommodate the large numbers of children involved and a special ward was set up at the local hospital to accommodate the children. The police surgeon initially challenged the anal dilatation test and police gradually withdrew their cooperation. Relationships between the police, social workers and paediatricians broke down as the dispute in medical opinions escalated. Initially, the media and public sympathy was strongly in support of the social workers and paediatricians; however, as the scandal came to embroil middle class families, public opinion shifted. These middle-class families were more able to challenge the power, authority and legal sanctions imposed by the government systems. The media turned to support the parents and a public inquiry was instigated, led by Justice Butler-Sloss. This highlighted significant deficits in professional standards of both the social workers and the paediatricians. Following this inquiry, a requirement was introduced specifying that social workers should not act solely on the basis of medical opinion. The anal dilatation test is now recognised to have no diagnostic significance in the interpretation of genital injuries and alleged sexual abuse.
With the passage of time and as new research emerges, it is inevitable that medical opinions on forensic injury interpretation will shift.22 New research has enabled forensic opinions in some fields such as infant head trauma to become less definitive regarding exact cause as more is understood about biomechanics; head injury thresholds and well-documented accidental injuries cloud previous dogmatic forensic opinions.1 Other examples commonly raised in child protection matters include the medical diagnosis of child sexual abuse based on measurements of hymenal opening diameters25 and aging of bruises,26,27 both of which have been now shown to be limited in diagnostic accuracy and forensic significance.
Here in Australia, despite being somewhat at arm's length from these events, a recent survey indicates child protection paediatricians harbour similar fears and the retreat from child protection work is evident in reducing interest from the profession in working in designated child protection positions.28 Some trainees who have completed some advanced training in community paediatrics explicitly refuse child protection responsibilities from their new consultant posts (Dr Anne Smith, pers. comm., 2007). Others have agreed to do only limited types of child protection work. There is a need for formal forensic training pathways that allow credentialing for paediatricians working in this field which recognises differing levels of expertise. Most paediatricians require some knowledge of child protection, including legislation regarding mandatory reporting responsibilities, child protection processes and the recognition of reasonable suspicion of harm in their day-to-day practice. A smaller group of paediatricians need expertise in the assessment and long-term care of children who enter the child protection system and need skills and experience to work in conjunction with other agencies with statutory child protection responsibilities to oversee child protection decision-making. Forensic paediatric experts are also needed to provide expert evidence in courts.
Forensic assessments fall predominantly into two categories – alleged sexual abuse and physical abuse. It is important that children have access to a skilled clinician who is able to perform acute and non-acute medical assessments of alleged sexual abuse and be competent in documentation of common forms of physical injury such as bruises. Arguably, the forensic assessment of suspected cases of abusive infant head trauma and complicated cases of suspected fabricated or induced illness should be assessed by experienced paediatricians using forensic principles to enable objective consideration of the medical evidence and explore medical differential diagnoses. They should provide an objective forensic opinion which would serve the needs of both civil (Family and Children's Court) and criminal jurisdictions. It is this group who is required to be most skilled in the provision of expert evidence in court and needs to be conversant with the responsibilities to the court rather than the party which has called them as witnesses. These paediatricians should be aware of the inherent limitations of their stated opinion and have a sound understanding of boundaries of professional expertise. In criminal jurisdictions, an expert witness cannot take the decision of guilt or innocence, nor can his or her evidence appear to decide this question for the jury. This is referred to as the ultimate issue and is the province of the jury. Experts must not trespass into their domain.11 Within the profession, some believe it is not appropriate for paediatricians to provide evidence when requested by the defence in criminal proceedings. This stance seems to reflect a widespread perception that child protection paediatricians are prosecution witnesses only. Based on the overarching public principle of administration of justice, paediatricians should be comfortable being asked for a forensic opinion from the defence. There should be no ambivalence in embracing the term ‘forensic paediatrician’ as forensic principles and frameworks clearly underpin how they practice in the medico-legal interface.29
The future practice of paediatricians working in child protection must be safeguarded. Children need protection and justice must be fairly administered to enable the profession to continue to be viewed with respect and authority. While it is important that there are adequate safeguards to project those professionals who work in this field, it is important that an objective forensic framework is firmly embraced to ensure that opinions are fair and objective.