Suspected child abuse: the potential for justice to miscarry

Poor process causes more injustice than poor professional practice

Two years ago the chief medical officer, Sir Liam Donaldson, in the course of a letter to every doctor in England and Wales, said that he doubted whether the public realised the extent to which “when things go wrong, the true cause lies in weakness within the system rather than the culpable actions of an individual.”1

One area where the British public sense that things have gone badly wrong is in the field of suspected child abuse. The quashing of Sally Clark's conviction for the murder of two of her children in January,^w1 and the collapse of the Crown Prosecution case against Trupti Patel in June,^w2 have shaken public confidence. In each case the issue at stake was whether it could be shown—beyond reasonable doubt—that a death originally certified as due to natural causes had, in retrospect, been caused by a parent. In each case suspicion only arose after a second child died. The Attorney General has now set up a review of these and other related cases,^w3 and the actions of individuals are under scrutiny. A landmark ruling in the Court of Appeal in the last week has also brought much needed clarity to the issue of whether children have a right to legal redress if decisions about their care are taken negligently.2

Sir Roy Meadow, a senior paediatrician with a life-time's experience of investigating cases of suspected abuse, was an expert witness in both the murder trials. A comment about the likelihood of unexplained sudden death claiming two young children in a single family formed part of his testimony in the first case. It went unchallenged at the time,^w4 but has since attracted strong criticism.^w5 What has not been asked is why it (or its relevance) went unchallenged at the time. Had it been a civil case, cross scrutiny of expert testimony would have resolved the relevance of these figures before they were ever put before a jury. The experts' duty is to provide informed, balanced, and impartial evidence, uninfluenced by the law's adversarial approach. But that does not mean that experts will always come to a common view. The use of expert testimony in criminal cases needs the reform that has now been instigated in civil cases.

The media expressed much outrage at this particular lapse,^w6 but the banning of a defence expert for repeatedly expressing opinions unsupported by any objective evidence went almost completely unreported.3 Many would accept that in a criminal trial it is worse for expert evidence to result in wrongful conviction than wrongful acquittal. However, when it is the safe custody of a child that is in question, it is the child's best interest that has to be paramount. For courts to be asked to believe that bone fractures in early infancy can be caused by what a single defence expert has called “temporary brittle bone disease” risked exposing children to further injury and possible death.^w7 The media showed no interest in the miscarriage of justice that this might have caused.

Sir Liam is almost certainly right. We need to look rather less critically at the people caught in the spotlight, and more at the systems failure involved. Court hearings—like diagnostic tests in medicine—sometimes get things wrong first time round. The task is to look at what has caused both false negative and false positive findings, and to see what can be done to minimise these.

One obvious flaw in the handling of the Sally Clark case was the dearth of high quality forensic input into the initial investigation of these deaths.^w7 Pathology services in the United Kingdom are now sadly stretched. As many as 400 histopathology posts may be vacant by next year.4 The way in which politicians and the media handled the outcome of the Alder Hey inquiry (caused by one pathologist retaining body parts wholesale without parental consent after autopsy) has had an even more damaging effect on paediatric and perinatal pathology.5 6 The systems failure at the heart of the current crisis is the lack of any well resourced, regionalised, forensic pathology service, staffed well enough for every coroner's autopsy to be cross checked by a second colleague.6 Audit for quality is impossible without this.

In that respect Dame Janet Smith's proposals are to be preferred to those being proposed by the Home Office here.7 The BMJ news item on 19 July describing Dame Janet's proposals was captioned “Investigators should be trained to 'think dirty.'”8 In fact, as correspondents were quick to point out, they just need to think—to think critically and objectively. As the Foundation for Sudden Infant Death emphasised, the admonition to “think dirty” has already done untold damage. Suspicion should be the end point, not the starting point, for any investigation.9

Only a minuscule fraction of all child abuse ends in death, but when it does it causes understandable public outrage. The government inquiry Lord Laming undertook last year following the death of Victoria Climbié was charged with identifying the lessons that needed to be learnt.^w8 He heard evidence that paediatricians are increasingly reluctant to become involved in child protection work for fear that this will trigger a formal complaint, a disciplinary hearing, and even litigation. He chose not to address the reason for this in any detail, but the problem will not go away.^w8 Paediatricians face a real dilemma if they find their duty of care to the child conflicts with their duty to respect parental wishes. One paediatrician who thought that his duty of care to the child came first was recently called to account before the General Medical Council on that very issue. While the council eventually found the doctor “not guilty of professional misconduct” that was hardly a ringing endorsement of the principle enshrined in the Childrens' Act of 1989 that, in any unresolvable conflict, it is the child's best interest that must prevail.10 There are those who thought that the General Medical Council should have called the doctor to account had he not taken that line. That certainly was the tenor of a landmark ruling by His Honour Judge Hale last year^w9 that was upheld on appeal, by the Master of the Rolls, in a long and nuanced judgment last week.2 Other aspects of that important judgment, limiting the immunity that a statutory body can claim if its management of a case has been deemed negligent, are reported elsewhere in this issue (305).

It is not for the doctor to decide what is in the child's best interest, but it is the doctor's job to see that the court is given a chance to make that decision. Many paediatricians are becoming increasingly reluctant to become involved in such matters because a single genuine misjudgment can now trigger a heavy handed disciplinary inquiry and much adverse media publicity. If pathologists are no longer going to be expected to make decisions that may have legal repercussions single handed, neither should their paediatric colleagues. Currently they feel damned if they do and damned if they don't. There is a resultant temptation to avoid all involvement and say that these things are a matter for social services or for the police. Uncertainty as to where prime responsibility lies, however, has been at the heart of many recent disasters.^w9 If that duty rests with all three agencies there is a real sense in which it rests with none. It might be clearer where it needs to rest if cases of ill treatment were categorised by motive and degree rather than, as now, by the type of injury sustained11—although, as one reader quickly pointed out, it is not always possible to be sure whether ill treatment really is involved.12 It might also help if we stopped calling neglect a form of abuse.13 Most of these families need help and support—not a pejorative label.

Ultimately it is for the courts to make these difficult judgments, but they cannot do this without medical help. Doctors, being human, will sometimes give flawed advice. There needs to be a robust system in place, in all our courts, to see that this does not result in a miscarriage of justice. Because many family court decisions are, understandably, made behind closed doors, the public cannot know how robust their systems are already.

See News 305

Extra references w1-w9 appear on bmj.com