By Michael Nott – posted Tuesday, 24 May 2005
Consider this. If you are a mother with a young child who has a very difficult-to-diagnose illness, you could find yourself looking down the aggressive barrel of a child protection agency. They could take your child into foster care, and the courts could allow you only very limited supervised contact with your child again, if at all.
There is no evidence that you have caused the child’s illness. Often the children at risk are very sick but a parent may have challenged a doctor’s medical treatment.
Such a scene is happening in a number of countries, including Australia, Germany, New Zealand, UK and the US. In some cases it is happening without evidence, driven by the speculative, circumstantial and prejudicial, much the same way as the witch hunts of old. It follows on from the Munchausen Syndrome by Proxy (MSBP) theory introduced by British pediatrician, Professor Sir Roy Meadow (Lancet in 1977), also known as “factitious illness”, “pediatric falsification disorder” and similar terms.
Named after the 18th century German figure Baron von Münchhausen, famous for his “tall stories”, Munchausen Syndrome is where one is alleged to be causing problems in oneself, e.g., self harm, or presenting oneself at hospital too many times. Munchausen Syndrome by Proxy is where one is alleged to be causing problems in another person, usually one’s child. In most cases, the mother – as the usual care-giver – is accused. I write as an advocate for mothers accused of Munchausen Syndrome by Proxy.
The MSBP theory has found favour in powerful sections of the medical profession, child protection, academia, law enforcement and the judiciary. According to medical sociologist Dr Helen Hayward-Brown it has become a nightmare waiting on the doorstep of every family with a sick child. Hayward-Brown was awarded her doctorate for investigating false allegations of MSPB, when many of her case studies were based in Australia.
“Ordinary mothers and fathers are being accused of child abuse because their children have an illness that some pediatricians cannot diagnose, or (because) the parents strongly question the doctor over the child’s treatment,” she said.
“The parents are refused the opportunity to obtain a second medical opinion as this is labelled ‘doctor shopping’, part of the MSBP child abuse profile – even though doctors are ethically obliged to allow it and it is a patient’s right to obtain a second medical opinion. A mother could be doing nothing wrong, other than showing anxiety and care for her child and questioning doctors on the care of her very sick child,” she said. “Before long, she could be accused of child abuse and face criminal charges. It is just like the witch hunts of centuries ago that were based on guesswork.”
MSBP is based on a “profile” or label that allegedly indicates the mother’s behaviour. Such a profile includes the mother who shows too much interest in medical procedures, paradoxically taking no interest in the child’s medical care, and the mother who passively accepts everything but also seeks attention by going to the media. Hayward-Brown said that generally an accused mother will be told she has little hope of her children being returned unless she confesses to MSBP.
Charles Pragnell, an expert British defence witness in child protection, now based in Melbourne, Australia, said that the labelling of a carer, usually the mother, with child abuse prevents proper investigation. Bringing legal action or making a complaint against a doctor is thereby effectively stopped.
Hayward-Brown said, “The MSBP profile used by doctors contains paradoxes that make it very difficult, almost impossible, for mothers to prove their innocence. For example, being an over-protective parent is part of the MSBP profile, but so is being a negligent parent.” Child protection agencies often took the view that a mother must be guilty and failed to undertake appropriate investigations.
“It does not matter if it is called a disorder, behaviour or syndrome. It does not matter if it is seen to be psychiatric or pediatric. The outcome is the same,” she said.
The legitimacy of the MSBP theory is now undergoing intense scrutiny worldwide. Challengers allege a lack of scientific integrity with highly questionable support literature in medical journals; there is concern that a minority of influential members of the medical profession continue its use. Pragnell made the point that Meadow’s MSBP research had not been subject to peer review.
Meadow is facing professional misconduct charges (June 2005) being brought by the British General Medical Council, concerning alleged misleading and contradictory evidence. The Royal Statistical Society publicly condemned (October 23, 2001) his statistical methodology, relating to his evidence in the Sally Clark case. A supporter, Professor David Southall, has also been found guilty of serious professional misconduct regarding a child abuse case. The UK Government has ordered official reviews of both criminal and civil cases involving Meadow’s MSBP and cot death theories. The Opposition has called for a public inquiry.
In the US, Howard Fishman, a former education director at the Harvard Medical School’s psychiatry department, commented, “The child abuse industry has devoted itself to the removal of children from their homes based on spectral evidence, phantom disorders and fanciful modes of purported abuse that should be assigned to the trash bin of junk science”.
Evidence involving the label or profile of MSBP has been rejected by Australian courts. For example, the Queensland Court of Appeal (R v LM  QCA 192), ruled it prejudicial and inadmissible. The South Australian Supreme Court (S4118, 1993) ruled that, although a pediatrician, Professor David Southall’s MSBP testimony could only be regarded as a lay person’s opinion.
Meadow’s cot death theory – that one child death in the same family is a tragedy, two suspicious and three murder – has been rejected by the UK Court of Appeal (R v Angela Cannings  EWCA Crim. 01) and in Tennessee, US, (2003, no. 99-D-2836). Judicial comments in the UK Clark case (R v Sally Clark  200203824 Y3) were that Meadow’s medical and statistical evidence on cot deaths in the case was “wrong” and “grossly overstated”.
The Queensland Court of Appeal (R v LM  QCA 192), in a unanimous judgment, stated MSBP (or factitious disorder by proxy) was not a recognised psychiatric disorder or mental illness in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM IV). The court went on to say that MSBP had no agreed sets of symptoms or signs that allowed it to be classified into a recognised psychiatric diagnostic system, it was not a recognised medical condition, disorder or syndrome, and the court excluded evidence from a psychiatrist as “extremely prejudicial”. Justice Holmes noted that the MSBP argument was inherently circular and did nothing to prove criminal conduct.
The Australian Capital Territory’s Director of Public Prosecutions, Richard Refshauge, said the QCA decision on MSBP made “clear that if a woman is to be prosecuted for harming her children, it is not enough to put a label on it; facts are required to justify the case”.
“By labelling the woman in this way with MSBP or factitious illness by proxy you are saying the woman is guilty, as the label creates the guilt … People are not convicted for having a syndrome or a particular behaviour; they are convicted for the illegal acts that they do.”
The QCA decision resulted from a case in a criminal court, where guilt must be established beyond reasonable doubt, but Munchausen Syndrome by Proxy is frequently used in care proceedings in the children’s court where a decision rests on the degree of probability and does not necessarily abide by the rules of evidence.
According to Pragnell, this is the heart of the problem. He said that in care proceedings, hearsay evidence was admissible, while such evidence would be inadmissible in criminal matters. Therefore, in care cases, the cards were heavily stacked against mothers when added to any balance-of-probability decision. He suggested care courts should be inquisitorial, aimed at establishing what has happened and what the outcome should be.
As Hayward-Brown pointed out, parents had limited finances and were often denied government legal aid and support as opposed to the authorities, which appeared to have unlimited funds.
The NSW child protection agency, Department of Community Services (DOCS), has confirmed it is “precluded” by law from using allegations of MSBP as the basis for the removal of a child. Yet, the writer believes it has used MSBP allegations for many years as the central allegation in child protection proceedings. Written statements to this writer from DOCS (September 10, 2003 and September 24, 2003) suggest that DOCS was in breach of its own legislation when it stated the “Children and Young Persons (Care and Protection) Act 1998 (Section 71, Subsection 2) precludes DOCS from taking any medical condition of a parent or carer into account when making a child protection decision”. The Director-General of DOCS, Dr Neil Shepherd, declined to be interviewed for this article.
Pragnell claims some medical authorities show scant regard for legal requirements. “This is causing immense harm to the status of the medical profession and public trust in physicians, as relatives and friends of affected families are alarmed and angered by the needless and unwarranted removal of children and, in some cases, the imprisonment of innocent mothers,” he said.
Earl Howe reported although the UK Government was looking at a restricted group of court cases where the verdict may have gone the wrong way, “It is disappointing that the Government is not addressing the MSBP or factitious illness by proxy diagnosis that is the core of the problem”.
In NSW, Victoria and Queensland, MSBP allegations are still being made against mothers. According to Hayward-Brown, there is no indication of any body in NSW or Australia showing concern about the need to review current and previous cases involving Meadow’s evidence, diagnoses and theories.
Australia’s Federal Government, through its Institute of Family Studies and its Child Protection Clearing House, still recognises MSBP as a valid “diagnosis”. Similarly, the Royal Australasian College of Physicians has made use of Meadow’s theories on its website.
Hayward-Brown stated that medical professionals were afraid to speak out publicly against their colleagues for fear of marginalisation and persecution in a small medical community. “This problem is not going to go away,” she said.
Legal firms and lawyers had refused to take on MSBP cases as they were too controversial and, “legal aid has been refused to MSBP cases by legal aid bodies in both NSW and Victoria on the grounds that they will not succeed,” she said. This had also occurred in the UK. Cases were often long, complex and involved expensive medical witnesses. Such a denial of legal representation had been found by the European Court of Human Rights to be a breach of human rights in an MSBP case (P, C & S v the UK; no. 56547/00; 2002) where the UK Government was found guilty and fined. This same court found that it was a breach of human rights to remove a child at birth due to a previous allegation of MSBP.
“No one seems to want to take responsibility over MSBP allegations: the doctors and hospitals, DOCS and the health department keep blaming each other,”Hayward-Brown said. Ministers’offices and opposition health spokespeople were quiet on the issues.
In a statement to this writer (July 26, 2004), the NSW Commissioner for Children and Young People, Gillian Calvert, said there was no consensus among the professionals on MSBP. Calvert described MSBP as “a complicated and difficult diagnosis with significant differences of opinion among medical and legal professionals: there are some medical experts who support and diagnose the syndrome and those who dispute its existence”.
It appears the commission has decided not to take any firm action or use its legislative power to order an inquiry. The commission has also declined to answer questions on whether it is “irresponsible and careless” to allow the current situation to continue. The commission’s parliamentary committee head, Barbara Perry, declined to be interviewed.
NSW Police has also declined to release information on its use of Meadow, Southall and a US MSBP proponent. The NSW Solicitor-General’s office also refused to respond.
Hayward-Brown said she was concerned that the diagnosis of MSBP was not being properly addressed in Australia: “No one wants to change the status quo and upset the careers of many doctors and social workers.” She thought authorities could also be reluctant to review cases because of the possibility of negligence claims.
Pragnell maintains that child protection systems are deeply flawed, erratic and dysfunctional: “There is now a worldwide storm brewing regarding child protection injustices,” he said. “And governments across the globe should take notice as the current situation will no longer be tolerated.”
To this writer, the authorities in Munchausen Syndrome by Proxy cases have a punitive approach towards parents and their children, who need support rather than punishment and suspicion. Compassion is sadly lacking. We need to reverse the witch-hunt trend and stop persecuting anxious mothers for challenging professional opinions, which in medical eyes, is so often seen as challenging their professional standing.