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Roy Meadow: a welcome reversal of fortune, with lessons
Comment
Roy Meadow: a welcome reversal of fortune, with lessons
www.thelancet.com Vol 367 February 25, 2006
process of justice is fair and grounded in law. Neither assumption held true in Meadow’s case. This failure raises questions about the robustness of the GMC’s procedures, the credibility of those who sit on its Fitness to Practise Panels, the quality of legal advice provided to those panels, and the overall leadership within the GMC —a leadership that many doctors feel has sacrificed principles of professionally led regulation to the expedient objective of preserving the Council’s powers in the face of unprecedented medical regulatory reform. Paediatricians will welcome Meadow’s exoneration. David Hall has pointed out that the confidence of paediatricians has been badly eroded by recent attacks, such as that against Meadow.3 Paediatricians now prefer to seek work that does not involve child-protection responsibilities. Yet protecting children is a central task of paediatric practice. Mr Justice Collins’ judgment will help to strengthen child-protection services in Britain. The more general victory in this case concerns new mechanisms for safeguarding expert witnesses. Mr Justice Collins concluded that the GMC’s decision to sanction Meadow “has had a damaging effect in that it has increased the reluctance of medical practitioners to
Rights were not granted to include this image in electronic media. Please refer to the printed journal.
UPPA/Photoshot
“The appeal is allowed on all grounds”. So concluded Mr Justice Collins in last week’s High Court judgment in the case of Roy Meadow vs the General Medical Council (GMC). Meadow had contested the GMC’s 2005 decision to find him guilty of serious professional misconduct, together with its subsequent sanction—to erase his name from the medical register.1 The High Court’s verdict is important both for the particular case of Meadow himself and for the general issue of expert witnesses appearing in court. It also raises troubling questions about the way Meadow’s story has been reported and debated in the news media. The High Court’s decision overturns a widely condemned judgment by the GMC. According to Mr Justice Collins, the GMC’s reasoning was not only unfair and overly harsh, but also “approaches the irrational”. Collins indicts the GMC’s Fitness to Practise Panel with a mixture of mockery and frank disgust. It was clear, he argued, that Meadow had acted in good faith when he gave expert witness testimony in the 1999 trial of Sally Clark, who was convicted of murdering her two children. The Court of Appeal quashed these convictions in 2003 on the basis of microbiological evidence that had remained undisclosed at the original trial. Meadow was referred to the GMC largely because of his use of figures taken from a report of sudden unexpected deaths in infancy. It was alleged that, in doing so, he had gone well beyond his area of expertise, beyond paediatrics and into statistics. But given that Meadow “had not intended to mislead the court and that there was no evidence of any calculated or wilful failure to use his best endeavours to provide evidence”, Collins had “no doubt that the complaint against [Meadow] should not have been pursued”. In pure legal terms, the GMC’s Fitness to Practise Panel “should not have considered the complaint” against Meadow at all. But far worse was the Fitness to Practise Panel’s extraordinary, deeply flawed, and brutal decision to strike Meadow from the medical register. This sanction was “unnecessary since [Meadow] had retired from clinical practice”. Worse, “It was imposed in the teeth of the many testimonials to him and the knowledge that he had made a real contribution to paediatric medicine”.2 A doctor referred to the GMC, together with the complainant, should feel confident that the Council’s
Mr Justice Collins
625
Comment
involve themselves in court proceedings”. The threat of disciplinary action against experts, even when their evidence was presented in good faith and with no intent to mislead, was a major disincentive to their participation in the courts. Collins has identified an important gap in the administration of justice. Any witness should feel able to give evidence without fearing litigation by those who might consider that their testimony has somehow damaged them unjustifiably. Before last week, such immunity did not extend to experts. Collins argued that it was only “common sense” to resolve this omission. Experts must be allowed to give evidence “free from the fear of subsequent disciplinary action”. Collins wrote: “There can be no doubt that the administration of justice has been seriously damaged by the decision of the [GMC’s Fitness to Practise Panel] in this case and the damage will continue unless it is made clear that such proceedings need not be feared by the expert witnesses.” Courts will not give experts a blank cheque. If expert witnesses fall below the standards expected of them, a judge can and should refer them to the relevant disciplinary body. Mr Justice Collins has repaired a substantial fault line that had opened up in the use of expert witnesses by the courts.4 The GMC called his ruling “a welcome contribution in a very vexed area of the law”. There remains a larger anxiety about the use of experts by the courts. In the House of Lords last week, the Attorney-General, Lord Goldsmith, gave notice of new guidance relating to expert witnesses. They will have to provide all information that might adversely affect their credibility as witnesses. They will be reminded not to stray from their own area of expertise. And pretrial discussion between experts is being considered as one way to identify areas of consensus and disagreement before proceedings go to trial. This strengthened guidance is welcome. But it does not go far enough. The court’s use of experts will only increase in coming years.5 Experience in more litigious societies points to the direction the UK will inevitably move towards. The plight of US obstetricians is a useful barometer for us. In Britain, we too are likely to see escalating risks of medical liability. Three-quarters of fellows of the American College of Obstetricians and Gynecologists have been sued at least once.6 The use of experts in these cases has set professional against professional, often with considerable financial incentive, 626
and all in the cauldron of an extremely adversarial legal process. The American expert-witness system is broken.7 I have argued before that as the UK approaches a similar level of tension regarding experts in the courts, there is a need for a Royal Commission to consider all aspects of this complex and disturbing issue.8 The public should not have to rely on miscarriages of justice to be sure that courts are trying to use experts more appropriately. There is one further lesson that this affair should teach us. Mr Justice Collins referred to a “media campaign based on a lack of knowledge of all the circumstances” as one cause of the GMC’s decision against Meadow. In other words, the GMC capitulated to a campaign of personal abuse and misinformation directed against one man. Collins had previously declared the media’s portrayal of this case as “manifestly unfair”.9 How long must the public, and the professions that serve the public, endure a press that is so indifferent, even hostile, to accuracy and integrity? The moral seriousness of these issues should have precluded the kind of pernicious writing and lazy research that have typified the biased coverage about both Sally Clark and Roy Meadow in recent years. Many doctors have nothing but contempt for the standards of what passes for much of today’s journalism. The case of Meadow vs the GMC should provoke newspaper and broadcast editors to reflect carefully about why the reputation of the media has fallen so low in the public’s eye. The relentless cynicism of many journalists and their apparent desire to see individuals publicly humiliated has bred mistrust and divisiveness between those charged with child protection and wider society. Mr Justice Collins has taken a vital step to correct a perverse, misguided, and often state-supported witch-hunt against the medical profession. Richard Horton The Lancet, London NW1 7BY, UK 1 2 3 4 5 6 7 8 9
Horton R. A dismal and dangerous verdict against Roy Meadow. Lancet 2005; 366: 277–78. McCarthy M. Meadow fought to make paediatrics a specialty. Lancet 2005; 366: 15. Hall DMB. The future of child protection. J R Soc Med 2006; 99: 6–9. Blom-Cooper L. Disciplining expert witnesses by regulatory bodies. Public Law 2006; 1: 3–5. Dyer C. Use of expert witnesses urged to boost rape conviction rate. Guardian Oct 17, 2005: 12. Hammond CB, Schwartz PA. Ethical issues related to medical expert testimony. Obstet Gynecol 2005; 106: 1055–58. Scott JR. Expert witnesses: perpetuating a flawed system. Obstet Gynecol 2005; 106: 902–03. Horton R. In defence of Roy Meadow. Lancet 2005; 366: 3–5. Dyer C. Media unfair to paediatrician, says judge. Guardian Jan 24, 2006: 7.
www.thelancet.com Vol 367 February 25, 2006
Roy Meadow: a welcome reversal of fortune, with lessons
www.thelancet.com Vol 367 February 25, 2006
process of justice is fair and grounded in law. Neither assumption held true in Meadow’s case. This failure raises questions about the robustness of the GMC’s procedures, the credibility of those who sit on its Fitness to Practise Panels, the quality of legal advice provided to those panels, and the overall leadership within the GMC —a leadership that many doctors feel has sacrificed principles of professionally led regulation to the expedient objective of preserving the Council’s powers in the face of unprecedented medical regulatory reform. Paediatricians will welcome Meadow’s exoneration. David Hall has pointed out that the confidence of paediatricians has been badly eroded by recent attacks, such as that against Meadow.3 Paediatricians now prefer to seek work that does not involve child-protection responsibilities. Yet protecting children is a central task of paediatric practice. Mr Justice Collins’ judgment will help to strengthen child-protection services in Britain. The more general victory in this case concerns new mechanisms for safeguarding expert witnesses. Mr Justice Collins concluded that the GMC’s decision to sanction Meadow “has had a damaging effect in that it has increased the reluctance of medical practitioners to
Rights were not granted to include this image in electronic media. Please refer to the printed journal.
UPPA/Photoshot
“The appeal is allowed on all grounds”. So concluded Mr Justice Collins in last week’s High Court judgment in the case of Roy Meadow vs the General Medical Council (GMC). Meadow had contested the GMC’s 2005 decision to find him guilty of serious professional misconduct, together with its subsequent sanction—to erase his name from the medical register.1 The High Court’s verdict is important both for the particular case of Meadow himself and for the general issue of expert witnesses appearing in court. It also raises troubling questions about the way Meadow’s story has been reported and debated in the news media. The High Court’s decision overturns a widely condemned judgment by the GMC. According to Mr Justice Collins, the GMC’s reasoning was not only unfair and overly harsh, but also “approaches the irrational”. Collins indicts the GMC’s Fitness to Practise Panel with a mixture of mockery and frank disgust. It was clear, he argued, that Meadow had acted in good faith when he gave expert witness testimony in the 1999 trial of Sally Clark, who was convicted of murdering her two children. The Court of Appeal quashed these convictions in 2003 on the basis of microbiological evidence that had remained undisclosed at the original trial. Meadow was referred to the GMC largely because of his use of figures taken from a report of sudden unexpected deaths in infancy. It was alleged that, in doing so, he had gone well beyond his area of expertise, beyond paediatrics and into statistics. But given that Meadow “had not intended to mislead the court and that there was no evidence of any calculated or wilful failure to use his best endeavours to provide evidence”, Collins had “no doubt that the complaint against [Meadow] should not have been pursued”. In pure legal terms, the GMC’s Fitness to Practise Panel “should not have considered the complaint” against Meadow at all. But far worse was the Fitness to Practise Panel’s extraordinary, deeply flawed, and brutal decision to strike Meadow from the medical register. This sanction was “unnecessary since [Meadow] had retired from clinical practice”. Worse, “It was imposed in the teeth of the many testimonials to him and the knowledge that he had made a real contribution to paediatric medicine”.2 A doctor referred to the GMC, together with the complainant, should feel confident that the Council’s
Mr Justice Collins
625
Comment
involve themselves in court proceedings”. The threat of disciplinary action against experts, even when their evidence was presented in good faith and with no intent to mislead, was a major disincentive to their participation in the courts. Collins has identified an important gap in the administration of justice. Any witness should feel able to give evidence without fearing litigation by those who might consider that their testimony has somehow damaged them unjustifiably. Before last week, such immunity did not extend to experts. Collins argued that it was only “common sense” to resolve this omission. Experts must be allowed to give evidence “free from the fear of subsequent disciplinary action”. Collins wrote: “There can be no doubt that the administration of justice has been seriously damaged by the decision of the [GMC’s Fitness to Practise Panel] in this case and the damage will continue unless it is made clear that such proceedings need not be feared by the expert witnesses.” Courts will not give experts a blank cheque. If expert witnesses fall below the standards expected of them, a judge can and should refer them to the relevant disciplinary body. Mr Justice Collins has repaired a substantial fault line that had opened up in the use of expert witnesses by the courts.4 The GMC called his ruling “a welcome contribution in a very vexed area of the law”. There remains a larger anxiety about the use of experts by the courts. In the House of Lords last week, the Attorney-General, Lord Goldsmith, gave notice of new guidance relating to expert witnesses. They will have to provide all information that might adversely affect their credibility as witnesses. They will be reminded not to stray from their own area of expertise. And pretrial discussion between experts is being considered as one way to identify areas of consensus and disagreement before proceedings go to trial. This strengthened guidance is welcome. But it does not go far enough. The court’s use of experts will only increase in coming years.5 Experience in more litigious societies points to the direction the UK will inevitably move towards. The plight of US obstetricians is a useful barometer for us. In Britain, we too are likely to see escalating risks of medical liability. Three-quarters of fellows of the American College of Obstetricians and Gynecologists have been sued at least once.6 The use of experts in these cases has set professional against professional, often with considerable financial incentive, 626
and all in the cauldron of an extremely adversarial legal process. The American expert-witness system is broken.7 I have argued before that as the UK approaches a similar level of tension regarding experts in the courts, there is a need for a Royal Commission to consider all aspects of this complex and disturbing issue.8 The public should not have to rely on miscarriages of justice to be sure that courts are trying to use experts more appropriately. There is one further lesson that this affair should teach us. Mr Justice Collins referred to a “media campaign based on a lack of knowledge of all the circumstances” as one cause of the GMC’s decision against Meadow. In other words, the GMC capitulated to a campaign of personal abuse and misinformation directed against one man. Collins had previously declared the media’s portrayal of this case as “manifestly unfair”.9 How long must the public, and the professions that serve the public, endure a press that is so indifferent, even hostile, to accuracy and integrity? The moral seriousness of these issues should have precluded the kind of pernicious writing and lazy research that have typified the biased coverage about both Sally Clark and Roy Meadow in recent years. Many doctors have nothing but contempt for the standards of what passes for much of today’s journalism. The case of Meadow vs the GMC should provoke newspaper and broadcast editors to reflect carefully about why the reputation of the media has fallen so low in the public’s eye. The relentless cynicism of many journalists and their apparent desire to see individuals publicly humiliated has bred mistrust and divisiveness between those charged with child protection and wider society. Mr Justice Collins has taken a vital step to correct a perverse, misguided, and often state-supported witch-hunt against the medical profession. Richard Horton The Lancet, London NW1 7BY, UK 1 2 3 4 5 6 7 8 9
Horton R. A dismal and dangerous verdict against Roy Meadow. Lancet 2005; 366: 277–78. McCarthy M. Meadow fought to make paediatrics a specialty. Lancet 2005; 366: 15. Hall DMB. The future of child protection. J R Soc Med 2006; 99: 6–9. Blom-Cooper L. Disciplining expert witnesses by regulatory bodies. Public Law 2006; 1: 3–5. Dyer C. Use of expert witnesses urged to boost rape conviction rate. Guardian Oct 17, 2005: 12. Hammond CB, Schwartz PA. Ethical issues related to medical expert testimony. Obstet Gynecol 2005; 106: 1055–58. Scott JR. Expert witnesses: perpetuating a flawed system. Obstet Gynecol 2005; 106: 902–03. Horton R. In defence of Roy Meadow. Lancet 2005; 366: 3–5. Dyer C. Media unfair to paediatrician, says judge. Guardian Jan 24, 2006: 7.
www.thelancet.com Vol 367 February 25, 2006