Some thoughts arising from the Evidence in Child Abuse Cases #ECAC course I attended today.
Firstly, it was an excellent course, and had a lot of fresh and useful material. It was a genuine pleasure to hear Jo Delahunty QC (who is like the most charming intelligent surgical scalpel you will ever meet) speak on the Al Alas Wray case (which I’ve blogged about before – here : – https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ as she was leading counsel for one of the parents, and so had a wealth of useful insights and tactics to put forward.
Secondly, there was a paediatric neuroradiologist sitting in front of me who is DEFINITELY going to get instructed next time I need one. Likewise the paediatric neurosurgeon. And no, I’m not sharing names, because I want them to be available when I call them.
One slightly awkward moment when an entirely different barrister responded, during the Panel session, to a barbed question from a doctor about whether Court is the best place to resolve complex medical issues with the R-bomb (With the greatest possible respect). Kudos to the questioner, for not responding, as I might have with “you know what, I’ll see your ‘crusader for justice’ and raise you ‘I save children’s lives for a living’ , so keep your Respect to yourself” and instead just said “with all due respect” which was even better)
Anyway, Liberace. You may not know, if you are younger, who Liberace is. So he was a flamboyant singer, who looked like this :-
In 1956, the Daily Mirror printed a story saying that he was gay. It was the Fifties, perhaps people needed to be told the bleeding obvious back then, and perhaps for some reason it was any of a newspaper’s business what a celebrities sex life was like (thank goodness times have changed)
Liberace sued them for libel. (he couldn’t, presumably, sue them for being homophobic jerks, because this was the Fifties).
He won his case,won about £15,000 (which in those days was at least several houses) and coined his expression “I cried all the way to the bank”.
Now, as you probably know, truth is a defence to libel. So, someone, representing the Mirror, went to Court, and tried to persuade the Court that it was true that Liberace was gay. And failed.
Feel free to look back at the photograph, which would have been my exhibit one.
I suspect whoever had that brief for the Mirror put on a tie with a smile on his face, and walked to Court with a spring in his step that day. They didn’t know much about basketball in those days, so the phrase “slam dunk” was meaningless to them, but if there was ever a slam dunk, that was it.
So I occasionally like to ponder the mixed feelings of the two counsel on that case – one with a mountain to climb who did so, and one with what looked like a molehill to step over, who fell over it.
The Al Alas Wray case is of course, not in that same league. For one thing (and I am sorry if this crushes any illusions) , Liberace really was gay, so shouldn’t have won; and the odds weren’t quite so slanted, but still, one is expected to think as counsel seeking the findings with the great and the good of Britain’s medicine lined up behind you, that you will see off these fancy American experts with their crazy theories, but it was not to be.
But the reason it was not to be, and this really came home today, listening to Jo Delahunty QC, is that people involved put in huge amounts of work. Medical reports weren’t just obtained and copied, or read through, they were digested and tough questions formulated arising out of them. The truth came out, but it wasn’t like finding a doorkey under a doormat – just a quick bit of lifting and there it is – this was truth obtained by painstaking forensic analysis.
And what was clear to everyone in the course was that Al Alas Wray might well represent the high watermark of when English family justice meant just that, that a person wrongly accused has the weight and resources of the law behind them and has the chance at a fair trial. A similar case in two years time, is not going to get the experts that are needed, the time that each expert needs to read the source material, the ability to call and test that evidence (it seems pretty clear that cross-examining experts will be a rarity even when you do get to instruct one) and certainly isn’t going to have the period of time it takes to do a case like that properly.
There was some interesting discussion about head injuries, and the medical research on lucidity. A key piece of research, which offsets the previous position of Chadwick 1997 that “If a history purports a lucid interval that history is likely false and the injury is likely inflicted” was Denton and Mileusnic 2003 where the child suffered a witnessed fall backwards 3 feet onto vinyl floor, was fine and tragically died 3 days later.
It’s a telling example of how even though any particular case might have to make medical history for the explanation given to be correct, medical history can be made by a single case. (And the one of those that leapt to my mind was Lou Gehrig, the baseball player, who died of Lou Gehrig’s disease. Plus, it started with an L, so it fitted. And was referenced by Bill-Hicks-rip-off-merchant Dennis Leary with the tasteless aside “How’d he not see that coming?”. )
Frankly, Phineas Gage is a better example particularly as we’re talking head injuries, and his story is fascinating if you haven’t already read it. He was a railway worker, who suffered a serious head injury, destroying his left frontal lobe which changed his entire personality, and is pretty much the beginnings of neuroscience, and moved us from reading bumps on people’s heads to finding out which bits of the brain do what.
Experts are defined not by their jobs e.g. one neuorscientist, unless out of touch /or date will be much the same as another. They are defined by their standing (the tallest) in their field in respect to a particular area of neuroscience.
You often do not need the number of ‘experts reports’ that the Al Alas Wray case was reported to have involved. You need to identify the specific issue e.g. through a thorough medical history -past and current- get the most up to date medical and get specific experts to comment. Such experts from my own very specific experience of identifying these in both unconventional and conventional manner, could be counted on 1 hand – they had published relevant stuff and their peers pointed to them. It was galling when I found the expert to be told ‘I had been fobbed off’ by a supposedly trained and skilled person. But identifying the experts threw up explanations that no one else understood. I was able to challenge a GP who accused me of giving myself a diagnosis (correct) on a letter.
That is the problem, sometimes the clients actually work things out from long held knowledge, but finding the true experts, let alone paying for them is very problematic and lawyers are not up to the mark on this. (again personal experience) Hence the Al Alas Wray needed a more forensic look. I would tend to not start with the social workers reports but seek out the medical questions at the outset if I was a lawyer. That is the only way to defend the innocent and act in anyone’s best interests.
Interesting post. Very few of us save children’s lives for a living and not even most doctors do that. ISTM that the question and the way it was put is revealing. Did the doctor resent they way that he or she had been treated in the past perhaps? or the fact that medical evidence is challenged by lawyers who don’t have the scientific knowledge or understanding?
Of course lawyers aren’t resolving complex medical issues, but they are dealing with the consequential fall- out. We know that so well that it scarcely needs saying, but the fact that the question was asked is interesting because it suggests that the doctor was defensive or irritated and perhaps hadn’t grasped the different roles. Why did the doctor feel the need to ask the question? That interests me.
Nobody loves a lawyer, but doctors didn’t have too much of a good reputation in the days before the NHS (and who knows what is to come), when they were literally earining a living out of people’s illness and distress: calling a doctor was an expense many could not afford. Of course I’m irritated by the question, which is why I’m responding, but I’ve thought about that too.
Part of the problem is that I really do think that, whilst intellectually medics have been trained about care proceedings, fundamentally it’s hard for doctors and other professionals to understand what goes on in care proceedings and why. A clinical psychiatrist used to making assessments and giving evidence in care proceedings will be a world away from the medical colleagues he or she trained with. How does this affect the evidence they give and their availability and willingness to do so? Are we as trial advocates failing to explain and to show respect for the disciplines on which we rely?
However, doesn’t the Al Alas Wray case illustrate exactly what forensic investigation can achieve and answer the doctor’s question? What if that case had been left to the doctors with no hearing: what would have happened then?
I’m preaching to the converted, I know, but if this issue is a live one, from a medic at a care proceedings seminar, then there is work still to do.