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Paediatricians and Child Protection

There has been much debate recently about Export Witnesses, Paediatricians, the GMC and Child Protection. A lot of the difficulties arise from the mismatch between medical decision-making and legal decision-making. However, there are other factors that need looking at. Given a bit of spare time today I will make a start at consolidating information about this.

It is worth looking at a few facts first. People who act as Expert Witnesses in the Family Court get paid substantial sums for their reports. The government is proposing to change the system. However, it is important to recognise that there is a financial interest in the system for expert witnesses.

Secondly, often Family Court judges will refuse second opinions. Even the Court of Appeal will refuse a second opinion. What this means is that if an expert states that a parent is guilty of child abuse frequently there is little that the parent can do.

A number of the theories which are used for expert opinion in the courts are simply theories. There has been no proper peer reviewed research to justify the claims. The theories that cause most difficulty here are the issue of fractures, Shaken Baby Syndrome, MSbP (FII by Proxy) and also salt poisoning.

There is, of course, a difficulty here that we must not simply go around shaking children in the interests of finding out what happens when they are shaken. The fact that the research is difficult does not mean that we should accept unproven assertions.

About a year ago Victoria Ward was lucky enough to win against expert allegations of fractures. That meant that she was not banned from being a mother. She was lucky that an additional expert opinion was allowed. Sadly there are many other cases that went the other way. The Eaton Foundation are aware of this.

However, we are not allowed to know who the experts were in that case. The argument that paediatricians use is that unless they can be immune from any consequences they will not raise concerns about child abuse.

The problem is that there is a substantial difference between having a suspicion, a reasonable suspicion or providing evidence to justify an allegation of child abuse. If someone is being paid thousands of pounds to provide evidence that they claim justifies legal action then they need to be accountable for what they are saying.

If someone was merely saying to a colleague that the situation looks iffy and needs a bit more medical investigation then that is one issue. However, if someone writes a detailed report for which they receive a large fee then it is a completely different situation.

We also face the situation where treating dcotors have been allowed to point the finger of suspicion for a child's death away from the hospital where the child was treated (negligence) towards a parent (manslaughter).

Happily the police are becoming more sensitive to this potential and procedures within the police forces and CPS are changing. We should not be surprised, however, if some doctors act in their own self-interest from time to time.

The case of David Southall had its own unique conflict of interest. David Southall enrolled the children taken into care into his research projects. He, therefore, provided the evidence to take them into care (later disproven) and used them as his lab subjects.

The special pleading by the RCPCH really does need to be properly challenged. Are they RCPCH really saying that there is no need for a doctor to be able to justify the allegations that they make merely because they are doctors. In theory the GMC requires that professionals only give evidence within their own area of speciality. We know, however, that this rule is not adhered to.

It will be interesting to see where the government's proposals go. When it comes to medical opinion being accepted as fact within court then there needs to be far more certainty. This is not yet proposed by government although they have been sympathetic to the points I have raised.

Doctors cannot be immune from being held to account for their professional opinion. If they want to be taken seriously (and to be paid for their opinion) then when they spout nonsense there needs to be an appropriate sanction.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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KING’S BENCH DIVISION

R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

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