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Mostyn-tacious – a judgment that makes your temples throb

 The case of Re D (A child) 2014 presented Mostyn J with a very very serious issue to try.

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/121.html

 The child, D, was profoundly unwell, with a great deal of problems.

 A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen – she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.

 On 2nd July 2013, there was a suspicion that D’s mother had deliberately turned off the tap which controlled the oxygen supply to D.

 There ended up being three, and only three possibilities

 

  1. The tap had not been turned off, and the medical staff who believed that it had were wrong
  2. The tap had been turned off, but it had been done so accidentally by a student nurse J
  3. The tap had been turned off deliberately by the mother

 

 

It is fairly easy to see that if a student nurse had made such a dreadful mistake, that would have some consequences. Likewise, if the Court were to find that mother had done so deliberately that would have very serious consequences for her.  Therefore, if the medical staff who believed the tap had been turned on were wrong, that would be important to know.

 

The police had undertaken a forensic exercise, but the only DNA on the tap was D’s herself. Obviously D was not capable of touching the tap, so the DNA would have been transferred there by another person touching the tap. So, the forensic evidence did not really help one way or another.

 

Here’s where things start to get complicated. Obviously, before you move to the identification of a perpetrator  (the whodunit exercise), you first want to establish whether anyone did anything.

 

Mostyn J indicated that he was satisfied that it was more likely than not that the tap HAD been turned off.

 

As he then pointed out, once he had found that it was more likely than not, the binary approach turns that into a probability of 100%.  Once a Judge finds that X event was more likely than not to have happened, then it happened.

 

The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.

 

And moving onto the ‘whodunnit’ part, the Court no longer takes into account that there was doubt about the first element, because it is a proven fact.  [i.e once the Court has found as a fact that an injury happened, then on considering who perpetrated it there is no longer a final option of “nobody did anything”]

 

 

Mostyn J was clearly in difficulties with that. He provided some probabilities, purely by way of example.

 

  1. Counsel for the Local Authority asks me to consider scenario (i) first. She invites me to find first on the balance of probabilities that the oxygen supply was indeed turned off and that Nurse G is not mistaken about that. As I will explain, I accept that submission notwithstanding that I have some serious concerns that I may well be wrong. I will find on the barest balance of probability that the supply was turned off. I appreciate that in a different context in Re B (Care Proceedings: Standard of Proof) at para 44 Lady Hale stated that “it is positively unhelpful to have the sort of indication of percentages that the judge was invited to give in this case”. However I do not think that prevents me from indicating, only for the sake of example, that the probability that the supply was turned off was 55% (or as the mathematicians would say P = 0.55 and Q = 0.45). Indeed, were I not to do so I believe that a serious injustice may well arise in this and other cases, for the reasons that follow.
  1. If I approach the exercise in the staged way suggested by Counsel for the Local Authority then the 55% probability which I ascribe to scenario (i) is converted by reason of Lord Hoffmann’s binary method of judging to a 100% certainty (or P = 1). What is a mere likelihood (in the true sense of the word) is transmuted into a certainty. The 45% probability that the oxygen supply was not turned off simply will not feature in the second stage which inquires into who turned it off.

 

 

What he then says, is (and indicating that he ascribes these percentage values purely for illustration) – what if the Judge then thinks that between the two remaining probabilities  (the student nurse did it v mother did it) he ascribes a 60% chance to the student nurse and 40% to mother…

 

On the traditional approach, having established that someone turned off the tap (it is more likely than not that someone did, so it becomes a judicial fact), one would then just find that it was more likely than not that the student nurse did it accidentally.

 

But if you sit down and do some maths, as Mostyn J did

 

Well, you then end up with

 

1.         The chance that the tap was not turned off and it was a mistake                        45%

2.         The chance that the tap was turned off by the student nurse 33% [that being 60% of the 55% chance that the tap WAS turned off]

 

3.         The chance that the tap was turned off by the mother       22%  [that being 40% of the 55% chance that the tap WAS turned off]

 

[That adds up, as probabilities must, in a closed system where there are no other options, to 100%.  And the largest of those probabilities is that the tap wasn’t turned off – although none of them hit the magic 51% that would show that it was MORE LIKELY THAN NOT]

 

As you can see, you get two contradictory results, depending on whether you approach the three possibilities in a LINEAR way (deciding first whether the tap was turned off, and then who did it)  or whether you calculate the probabilities of each event and THEN look at which is the most likely.

What is being illustrated here, is that if, instead of a two stage process

1. Did the event happen?

2. Who did it?

One compresses that into a one stage process

1. Is it more likely than not that person x did event y ?

 You can end up with two different answers.

 

That led Mostyn J to form these two conclusions

 

 I have already indicated that on the barest balance of probabilities Nurse G was right to deduce that the oxygen supply was turned off. The grip on the tap in the off position is distinct if slight. She has been consistent in her contemporaneous statements. She is an experienced and meticulous nurse. On the other hand, she accepted that this may well have been an event where the oxygen saturation level fell even though the oxygen was on, and that she may have jumped to a conclusion. There was a great drama happening and attention to detail may have been wanting. Having considered the matter very carefully I am satisfied, just, that the supply was turned off, but I do record that my doubts are very real.

 

[i.e that the Court finds it was more likely than not that the tap WAS turned off, although there’s a significant possibility that it wasn’t.]

 

But then

 

Having weighed all the evidence very clearly I conclude on the balance of probabilities that if the supply was turned off the mother did not do it. In the light of Lady Hale’s strictures I do not ascribe a percentage probability to this finding but I am confident in it. But it does not follow from this finding that I am concluding that J did turn the supply off by accident. Far from it. A correct application of the laws of probability leads me to conclude that in relation to her also I am not satisfied on the balance of probability that she accidentally turned off the supply.

 

 

[Explicitly finding that IF the tap was turned off, mother did not do it, but also making clear that this does not mean that the only remaining of the three possibilities – that the student nurse, J, did it, was what the Court found. In fact, that this possibility is not found either. ]

 

 

I think (deep breath) that the finding actually ends up being (though this is never baldly stated)

 

Whilst it appears that it is more likely than not that the tap was turned off, once one factors in the doubt about this, it is not more likely than not that the tap was turned off EITHER by  J, the student nurse, or by the mother, and thus no findings can be safely made against either mother OR J the student nurse.

 

 

I can see what Mostyn J is getting at here, but it is clearly problematic that a Judge faced with the exercise of hearing the evidence about a very grave allegation ends up not finding that any of the only three probabilities is more likely than not to have happened.  You end up with an odd situation that the Judge basically hints that the MOST likely of the three explanations is that the tap was not turned off, even though the only thing that he found WAS more likely than not was that the tap WAS turned off.

 

A problem here is that the case before him didn’t easily settle into a Lancashire finding – i.e that (i) it is more likely than not that someone turned off the tap (ii) the Court can’t identify the perpetrator, but that the only two possibilities are the student nurse J and the mother and neither can be safely excluded

 

The reason being that the ‘motivation’ for turning off the tap is different for the two potential perpetrators – one is an accident, and one is deliberate. So a Lancashire finding doesn’t really resolve anything.  [It is, at least arguable that if the scenario had been that either mum or dad had deliberately turned off the tap and nobody else could possibly have done it, then, a Lancashire finding would have been made]

 

 

The other problem is that whilst the numbers used by Mostyn J are arbitrary, for illustrative purposes, the residual impression is that Mostyn J considered that if the tap HAD been turned off, it was much more likely to have been by the student nurse than by the mother, that being caused simply by the numbers he plugs into his calculations.

 

That residual impression is quite a big deal for the nurse in question, and I wonder whether the human importance of what was being deliberated here got somewhat lost in the maths.

 I wonder if these arguments are going to be imported into other cases, or whether Mostyn J is pretty much the only Judge who is going to divert from the standard way of dealing with findings.

One thing is for sure, counsel appearing before Mostyn J in finding of fact cases would do well to read up a bit on probability theory and bring a calculator (and perhaps some Migraleve).  

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

19 responses

  1. Thanks this is of great use! TC

  2. Good thing your criminal courts do not use probabilities.

    • Yes, the most notable case of our criminal courts getting stuck into probability theory was of course R v Cannings, and that went spectacularly wrong.

      To be fair, I don’t think the human brain is good at probabilities, the frequently cited example that a test for an illness that is 90% accurate in diagnosing the disease that affects one in 10,000 people isn’t necessarily awful news if you test positive – it might still be much more likely that you don’t have the disease than that you do. No matter how many times I read that, and follow the maths and know it is right, the gut reaction is still that if the test is positive, its 90% likely that you have the disease. [Apparently even a significant proportion of docotors make this same error]

      • If probabilities are so inherently flawed, why use them in such important cases? It seems they are leaving the door wide open to disaster.

  3. Ashamed to be British

    Interesting read.
    It’s a shame that even when courts/cps decide not to bring the case to court, the Local Authority will not accept that as the person having not done anything (the 0 value) but continue to use it against the parent(s) as that they did do it, there just wasn’t enough evidence to prosecute
    When a family matter hasn’t got as far as PLO/proceedings, that is what social services decide (depending on whose face fits) hence why we call these meetings ‘kangaroo courts’ inevitably the accused will end up with this stuck to their CRB and punished by means of forced supervised contact or any contact they do have taken away

    • You describe accurately what social services did in my child’s case. They convinced themselves, without evidence, that I was responsible for having abused my child and then contrived, along with the police and an equally complicit mother, to terminate my role as parent.

  4. What consideration is given to the possibility of the nurse acting maliciously? And what chance was there of some other unknown third party doing it? These may be slight chances but they are chances nonetheless which ought to be factored in if probability theory is going to rule the roost. Was the child’s DNA transferred to the tap from surgical gloves? There has to be a logical explanation as to how it got there.

    A judge who makes a declaration of definite fact based on probabilities, particularly when he cannot possibly ascribe an accurate, known value to the probabilities, is engaging in an exercise in self-deception and passing it off as justice. If you don’t know something, what is the harm in saying so and then moving on?

  5. Suspiciousminds should check if this is an MSBP/FII case – what is being described is the “test” for MSBP/FII.

  6. A bit of caution here, before we start accusing nurses of Beverley Allett stuff – a High Court Judge looked very hard at all of the evidence (which we of course have not had the advantage of seeing) , heard all of the witnesses (and we didn’t hear their evidence) and found no suggestion of this at all.

    • Ashamed to be British

      You misunderstood me, there was another option which was not taken into consideration, and that is the nurse could have done this on purpose, just as Beverly Allett did, another possibility ruled out before it was even considered or ruled in, typical of the courts, they’re so slack

  7. Pingback: Mostyn-tacious – a judgment that makes y...

  8. LISTEN UP !

    This has got MSBP/FII written all over it. This is the test for FII. Usually something has got switched off by accident, but is seen as proof positive as being done by the
    mother.

  9. Beyond ridiculous that a so called ‘court’ wd even consider that….but what does it matter? Even if the nurse, deliberate or otherwise killed the patient by INJECTING AND EPIDURAL INTO SOMEONES ARM, despite hundred thousand of pounds of ‘training’ (even your average idiot who has access to a TV knows that an epidural goes in the spine)… still no prosecution. Probably been promoted to ‘Consultant’ by now….never mind abducting people and throwing them out of back of ambulances DELIBERATELY, whilst laughing about it. Never mind creeping up behind people and shooting them repeatedly in the head.

    Point is these so called ‘non physical entities’ get paid to find a victim, and when they’re the perps that did it they still get paid to blame it on somebody else…in their ‘system’ they can do no wrong, so they have to blame somebody else and more so when the victims defend themselves….and regardless, if I had someone I cared about in that condition I have every right to euthanise them. Can only hope somebody would do it to me.

  10. my first thought was the NHS avoiding their own negligence…. Mostyn can do as many calculations as he likes, the fact remains that there is no evidence at all that the mother turned the tap off. The ONLY three possibilities he assumes of what could have possibly have happened, comes from his sociocentric view point, he does not raise the possibility that the NHS staff could have turned the tap off deliberately, its a possibility,like it or not. Although he had seen all the evidence and heard all the witnesses,its extremely likely that he would of not have been looking for evidence to raise the forth possibility, because he is a fellow “professional”. How many patients did Shipman murder before his fellow “professionals” started to raise concerns, 200 ? The NHS is rife with incompetence,abuse and neglect, Staffordshire is just the tip of a very large iceberg,plus the millions spent on silencing whistleblowers in the NHS. Nothing has been learnt by the “professionals” from past experiences, just like with SCR’s, its lessons have been learnt,but they haven’t….. The term professionals is used to imply a higher standard of human and that they do not have the same negative human traits, intentions or desires etc, as others “below” them may have, but they are not some super Homo sapien species. they have the same negative traits etc that others can have.Look at the case of Joshua Titcombe, midwives colluding with one another to destroy evidence and that’s just one case of many,and week in week out “professional” social workers are struck off or sent to prison for allsorts,including the extremes of sexual abuse, rape, physical abuse, assault, drug offences,indecent images of children, one even hired a hit man, never mind them lying and covering things up or calling girls prostitutes as in Rochdale to hide their incompetence and neglect.and in this case Mostyn said: “It was suggested that the mother had been exhausted by a second night of broken sleep and did this act out of love to relieve (her daughter) of her suffering.” There are a few things about this, its the usual psychological projection of one person’s thoughts (usually a social worker) onto another,and usually based on perceptions, misconceptions or and prejudice of the person projecting or and society, its also a very devious attempt to attempt to find findings against the mother with its pretence of sympathy for her, lets remember that the “caring” professions such as DR’s and others attract a higher percentage of psychopaths. The baby was nearly one, the mother had been in the situation for nearly a year, not a couple of nights and parents in these situations become extremely devoted to the child, which raises another question, this could be a child in the future where sadly the NHS staff want to withdraw treatment and allow the child to pass away and it end up in the court of protection for a judge to decide, but what about a parent deciding? do they not have that right morally instead of the state. After saying this I would still put my money on incompetence/neglect by the NHS and as with other cases like social workers having a duty of care, judges attempt to lessen the possibility of institutions of the state having liability, “the tap was not turned off”….and if its ok to accuse a mother of turning the tap off with no evidence at all but with just an opinion and to put her through this ordeal,then its ok to accuse the NHS of neglect or even deliberately taking an action with malice,they should be held to account as public servants paid for by the public and not protected from being held accountable especially where an action taken maybe criminal and I bet the police that investigated this did not count out option 4,which really shows the difference in approach when social services are involved.

  11. i would say it’s far MORE LIKELY that one of the protected/ g-men/ immunity from prosecution did turn the tap off deliberately, than not presuming this isn’t a hypothetical case.

    Psychopaths that enjoy violence, murdering, raping, torturing, killing, stealing and all that DO apply for jobs in the pigyob force/ army etc. If you enjoy that sort of thing best to do when it’s a job requirement and enjoy immunity from prosecution, surely? not only that they create specialist jobs within/ death squads of creme de la creme of psychopath/ firearms units. and now they going to make all of them wear video cameras so whilst they raping you with the camera and murdering you, they can jerk off to the footage at a later date? i have evry right to protect myself from being filmed against my will…..doing that whilst threatening to murder me with a machine gun is more likely to increase the chances of me trying to defend myself for once, hopefully- better than being taken alive again!

    Pedophiles do apply for jobs to work with children. Not only that what HAS happened is a few get into positions of power and then promote other pedos so they can all protect each other/ blackmail each other….you can’t me a member of the cabinet (i.e. the supposed govt) unless the real PTB has soemthing to blackmail you with…

    & you can’t be employed by the NHS unless you are prepared to break the oath they all took (and presumably still take?) as soon as you start work? these are not decent people by definition….and i used to date a nurse so i know a lot more than the tip of the occasional iceberg that makes it on MSM- and she was seconded to the complaints/ professional standards/ coverup dept for six months! glad i’m not dating her anymore…..

    • Psychopaths want success, status and power among other things and they don’t intend on being prosecuted,they believe them selves to be to clever to get caught and not all will rape,kill or torture,they want to and will manipulate and play god,thats why you will find them working in hospitals as surgeons etc or lawyers/judges in courts or in government as mp’s,civil servants.

      Your average human will kill rape and torture, especially in a group like that of the police or army where ingroup behaviour comes into play, which has been shaped by our evolutionary psychology from hunting and defending ourselves in packs and later in tribes,we are predatory animals.

      Your average human will show remorse and empathy, its why so many veterans commit suicide once they have left the group. When was the last time anyone heard of a social worker committing suicide because they could not live with the fact they destroyed a family that just needed a little support and had their children adopted or a judge unable to hand down a judgement that would destroy a family(they just say its draconian but hand it down) ..

      Psychopaths never take responsibility for their actions, when did anyone ever read a SCR where a social worker put their hand up and took the blame, they blame everyone and all other agencies, even the children, except themselves . When did a nurse or doctor hold their hand up and admit they screwed up, made a mistake, showed candour or admit liability, they don’t.

      others “care professionals” that are not psychopaths are a sort of pious fraud meeting their own emotional needs to be seen as caring etc and commit crimes of abuse, they are like psychopaths in the way that they need to show a mask to society to hide them selves.

      • Excellent Post Ben!!!! Well done!!!
        TC

      • better way of putting it by sure! 😉 but in the larger picture as well….you can’t be a part of the nazi regime without being a nazi, it doesn’t matter if you were the clerk, the one hearding people onto trains or the one’s dropping the gas in…..and we now have and have had for last ten years or so is far worse than the nazi regime.

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