Medical Expert Evidence: The Continuing Failure Of The Legal System
Some years ago I wrote in On Line Opinion and other publications about the failure of our legal system to heed the injustices that have occurred concerning the beliefs and speculations of British kidney specialist, Professor Sir Roy Meadow. These issues involve both civil and criminal jurisdictions.
There has been some improvement particularly with the cases of R v JKF; and R v Matthey.
In R v JKF a mother was charged with the attempted murder of her daughter. The prosecution attempted to use similar facts evidence concerning the deaths of two other children. James J ruled that the deaths were not similar and the case failed.
In Matthey, the mother was charged with the murder of her four children. Again the case failed and did not proceed to trial. Both of these cases were based on Professor Meadow’s theories although the theories were not mentioned by name in the cases. As Coldrey J said in Matthey, an expert prosecution witness Dr Susan Beal “reasoned backwards” to construct a case for murder.
These cases were based on Meadow’s now discredited cot death theory: one infant death is a tragedy, two is suspicious and three is murder (The ABC of Child Abuse, BMJ Publishing Group, 1997, page 29). This theory has been rejected in many other cases such as the Ward case in Tennessee USA (State of Tennessee v Shabree Ward No. M2002-01816-CCA-R3-CD ). In the Angela Cannings judgement (R v Angela Cannings  EWCA Crim. 01), the UK Court of Appeal said the cot death theory “had to stop”, while in Sally Clark’s case (R v Sally Clark  200203824 Y3), the judges described Meadow’s medical and statistical evidence on cot deaths as “wrong”, stating that such evidence “should not have been put before a jury” and that “the wisest course would have been to exclude it altogether”.
Meadow is also responsible for the child abuse belief of munchausen syndrome (factitious illness) by proxy (MSBP) (The Lancet, 1977) that is widely, but erroneously, accepted in the child protection sector, by police and the judiciary in Australia. The basis of this allegation is that a parent or other carer has deliberately fabricated or induced an illness in a child. There is no scientifically-based evidence to support Meadow’s beliefs that were based on anecdotal comments on two of his patients.
Meadow and the proponents of the theory fail to consider other reasons for a child’s death or illness. These include adverse reaction to drugs or the combination of drugs, environmental poisoning, allergies to foods or food additives or an adverse reaction to chemicals, vaccination damage, genetic problems, doctor negligence or misdiagnoses and the like. Rather, when the matters are fully investigated there are compelling evidentiary alternatives to an unsupported belief that a mother killed her child or caused the child to be sick. The label of munchausen syndrome by proxy entails the use of prejudicial profiling, at the expense of hard evidence.
In one influential decision for the Australian judiciary, Meadow’s MSBP was rejected by the Queensland Court of Appeal in the case of R v LM (QCA 192 ). The court ruled that MSBP or factitious illness (FII) was inadmissible in evidence and ruled out the testimony of doctors alluding to the alleged disorder. The court stated that MSBP/FII was not a recognised medical condition, disorder or syndrome. In the case, Justice Holmes remarked that the Crown’s use of MSBP “explained nothing”, “the Crown’s argument … was inherently circular” and “did nothing to prove criminal conduct”. That legal reasoning was adopted by the UK High Court in the Family Division (A County Council v A Mother and A Father and X,Y,Z children  EWHC 31 Fam). In the case, Justice Ryder stated that he hoped MSBP would be “consigned to the history books”.
Yet, despite the discrediting of the theories, the use of Meadow’s beliefs continues in Australia with child protection agencies in New South Wales, and other states still use the cot death theory and MSBP in child abuse cases.
Medical anthropologist Dr Helen Hayward-Brown specialises in the research of false allegations of munchausen syndrome by proxy. She is concerned that social services continue to use this label, or similar labels, to remove children from families or accuse mothers of attempting to murder their children. She is particularly concerned that social services are becoming “quasi- medical practitioners” who are making uninformed decisions about particular medical conditions.
For example, a mother and child who both suffer from a rare genetic condition are separated because social services “don’t like the mother’s parenting style”. In fact, social services have overlooked the diagnosis and special medical needs of the child. It is also apparent that mothers of autistic children are increasingly at risk of their children being removed. For example, if a mother, under medical directions, provides supplements to her child, she is accused of “poisoning” her child and “doctor shopping”. In other words, social services are removing children from parents, despite the documented support of these families’ doctors.
The common practice of removing children on emergency orders on a Friday afternoon, leaving no time for families to engage a legal practitioner, is another problematic complication of the power of these erroneous theories. It also reflects a judicial system which is allowing the profiling of parents without accurate evidence.
Most recently, Dr Hayward-Brown has noted that social services are aware that the diagnosis of MSBP has been discredited, so parents actually receive an “invisible label”. Parents are continuing to be accused of MSBP, with its concomitant profiling, but the label is not used in court documents.
A significant court success was a case of a mother originally accused of MSBP some 15 years ago by Meadow when he was provided with medical files and other material by a child protection agency. This mother’s children were placed in care, except for the eldest child. Around 2004, when the mother was expecting another child, she went interstate to give birth as she was afraid that the newborn child would be taken from her at birth. (Removals at birth have increased dramatically over the last few years.) After the birth, social services became aware of her situation and she fled. Five years later her child was found and taken into care. The subsequent court ruling resulted in the mother resuming full time care of the child. She is unable to regain custody of other children taken from her based on the now discredited MSBP theory.
There is a certain irony in this case. If a mother is accused of MSBP, she is supposed to be harming her child to get attention from the medical profession. In this case, when the mother fled she was apparently not in a position to get attention from medical professionals.
Agencies continue to pursue the mother in R v JKF who was also directly accused by Sir Roy Meadow. Once the case failed in the Supreme Court, the police and the NSW Crown Solicitor’s Office took the matter of the deaths of the mother’s two other children to the Coroner’s Court in late 2009. At the time of the two deaths in 1998, police provided the coroner with death certificates for the two children noting that medical conditions were the cause of the deaths. The deputy coroner justified the delay in the hearing on the basis of other court hearings involving the mother. The mother was not entitled to legal counsel, as the Coroner’s Court is a court of inquiry. For these reasons, there was no cross-examination of witnesses who had previously given evidence for the prosecution.
The deputy coroner raised the issue of munchausen syndrome by proxy but declined to make a finding on the matter. He found that one child died of natural causes while the other child died as a result of “probable” introduction of foreign substances. The deputy coroner did not say that the mother had introduced the foreign substance.
He stated that as result of the decision in R v JKF, he was not satisfied that a jury could be satisfied beyond reasonable doubt. Despite lack of definitive evidence and the failure of criminal charges, the child protection agency refuses to reinstate the mother’s custody rights to her only living child.
A succession of UK, Queensland and USA superior courts have found that Meadow’s cot deaths and MSBP beliefs have no legal foundation – R v LM ruled the MSBP label inadmissible evidence. The British General Medical Council and the Royal Statistical Society have criticised Meadow’s use of statistics and his lack of concern about the matter. I question why Meadow’s discredited beliefs are still being used in Australia, in both civil and criminal jurisdictions, as they are based on speculation, beliefs and surmise – no substantive evidence of illegal acts or probative evidence of children being at risk of harm.
About the Author
Michael Nott is an advocate for mothers falsely accused of munchausen syndrome (factitious illness) by proxy. He is an external law student at the Macquarie University. He can be contacted by email at: michalenottATyahoo.com.au or nott_michaelATyahoo.com.au.