The Defence Opens to a Prosecution Continuing Downhill
For some reason that I don't quite understand, the presence outside the GMC appeared more substantial than at the start of the hearing. It was as if the thought that had gone into the preparation showed through in the attitude of the participants; there appeared to be a greater sense of purpose.
There was also a manifest hardening of attitude to Dear Brian. With the prosecution having been revealed in it's full glory, many more people were now wondering, with increasing annoyance, just how he could have got away with such a thin litany of complaints and how it was that the General Medical Council had jollied along with him.
Personally, I think that Dear Brian should be commended for his bravery and stoicism. He arrived at the GMC on Thursday morning, very upset about my essay The Complainant . The first person he found himself in conversation with was Allison Edwards, despite her feelings expressed in a frozen smile as sharp as a sickle Allison managed to keep a reasonable tone. This wasn't so true of the parents who surrounded Dear and David Thrower during the lunch hour in the theatrical equivalent of a fish-wives row just outside the doors of the GMC. This event had the interesting feel of a Brecht production; all it missed was the scratchy strains of violin and piano music. While David Thrower was able to make his points without interruption, Brian's every stupidity was echoed with a chorus of whistles, ‘ ahhhhs ' and ‘ Yeahsssses ' from the surrounding chorus of parents. Personally I can't wait for the musical to come to the Dominion Theatre on Tottenham Court Road and hope that they have the creativity to do it on roller-skates.
We all have our favourite moments of great works and my favourite moment in this al fresco production was when Brian referred to me as a ‘dribbling idiot'. For someone like me, forever conscious of their age, this hit home. However, in librettists terms it comes nowhere near his various descriptions of others. Carol Stott, for instance sharply sketched first as a ‘quack,' then ‘a shabby psychologist,' could have been a perfect foil for McHeath . But even these vignettes pale into insignificance when cast beside his description of Private Eye's Heather Mill's, who after alluding to Dear's ‘hatchet job' C4 documentary, became the subject of some very eighteenth century speculation about her and Dr Wakefield.
During the day, inside the building, Brian was subjected to another confrontation with a parent from the less hospitable northern part of the Union. There, the indigenous people express themselves with less of the culture and manners of their southern kin. It was, in fact a wonder that neither participant in this confrontation was hurt.
All in all, the day beyond the GMC was full of incident and high emotions. Like the return to school after the holidays that I described in one of last year's reports, there was a sense of familiarity and camaraderie as all the campaigners met up. On this level, as well, one has to feel some sympathy for Dear Brian. He appears to have no-one with whom to share his cultural and intellectual vacuum and spends most of his time talking to ‘hearing novices' trying to impress them with his inside knowledge. For the second time in the last year, I heard him explaining the case, and that of Hannah Poling as ‘just the rumour mill'. This, he obviously felt, was an adequate explanation of the science that is beginning to emerge as accepted in the United States around the issues of vaccines and autism. I have to say that on occasions I fear for Dear Brian's health, after he returned from the confrontation with David Thrower I noticed that he was muttering to himself.
The parents know, not only that they have right on their side, but that they are there for each other as well as the doctors. And while they continue to forge something of a community, in which to share their experiences and their coping, Brian remains isolated, a social pariah, who will undoubtedly be cast aside like a used condom when his benefit to the Department of Health and ABPI comes to an end.
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The First Week of the Defence: 27 March – 3 April
Inside the hearing Miss Smith began by complaining that the room appeared to have got longer and she now found herself further away than ever from the witness giving evidence. I first wondered whether she was ‘on' something, but that seemed unlikely and I finally settled for a version of the ‘Alice in Wonderland Syndrome' (AWS), common amongst women who like to think that they are growing younger rather than older. In this syndrome, the environment appears, to the subject, to be getting bigger. Anyway, when Dr Wakefield at the other end of the room, failed to support this application to have the seating arrangement of the hearing truncated, Miss Smith sat down.
Neither Miss Smith nor the chairman of the panel appear to see the overt, and sometimes hilarious, humour in their position and their remarks. As the defence opened, the Chairman of the panel addressed Dr Wakefield with the words, ‘Thank you for coming to give us the benefit of your evidence this morning'. If I hadn't been the very reserved person, I am, I would have rolled on the floor laughing like a hyena.
After preliminaries, the re-drafting of a couple of the charges and some other bits of housekeeping Keiran Coonan opened the case for the defence and Dr Andrew Wakefield began telling his story. If there isn't a legal maxim that states ‘It's more difficult to defend an innocent man than one who is guilty', there should be. While a guilty man knows exactly what actually happened and can therefore present a completely plausible defence, the man who is wrongly accused, often doesn't have the faintest idea how or why everyone is making up stories about him.
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Before he got seriously underway Mr Coonan told the hearing that he had prepared a route-map. I was suddenly worried, hoping that this route map would be better than President Bush's last ‘road map' to peace in the Middle East. Mr Coonan's route-map trod an explanatory path through a chronology that ran from 1988 to 2004. By organising the defence in this way, Dr Wakefield and his lawyers would be able to talk through the sorry prosecution case, addressing charges from the period when they arose.
It was immediately obvious as many of us had suspected that as the ‘real' story unfolded, the prosecution case, like the modern ice cream that Mrs Thatcher used to scientifically design, or the bread that came from the Aerated Bread Company (ABC) was in large part made up of air. In fact it might be better from this point onwards to refer to the ‘absent' or ‘late' case for the prosecution.
Wakefield's tone from the beginning, while being led through his evidence-in-chief, was patient, absent of malice and without any hint of righteous anger. He was clearly in for the long haul with the first opportunity, in over four years, to address a group of people who were bound to listen to him without interruption. From the beginning as well, he seemed conscious of the panel's lack of experience in his specialised field; he stopped occasionally to address them on specific points.
From the back, one was constantly reminded of Wakefield's broad shoulders that had now, for some time, carried a heavy burden. He was dressed funereally, in a black suit, black socks and black shoes, white shirt and dark tie. Dr Wakefield is a presence in the long white room, and you could sense his cerebral concentration as if all his physical energy was now in his head as he focused earnestly on every word he uttered, intent on not making a mistake.
While Dr Wakefield is evidently able to withstand the gales of a public prosecution, Professor Walker-Smith's health waned throughout this first week. As the case opened again, he was suffering from bad bronchitis. Observers were reminded that resisting prosecutions of this kind are ostensibly a young man's sport.
Much of the first day was taken up with re-embedding Dr Wakefield in his profession. Mr Coonan took him slowly through his previous achievements and then his work at the Royal Free. As Coonan coaxed Wakefield through his work two things occurred to me. First, the defence was now repeating what the prosecution had already, inadvertently, given evidence to by describing in detail how the department at the Royal Free worked co-operatively and collectively. Second, one saw with increasing clarity how unbelievably narcissistic it was of Dear Brian to try to destroy the reputation and downgrade the career of a doctor whose heart was committed to his patients and who at a relatively young age had 137 peer reviewed publications to his name.
Mr Coonan's ‘route-map' was actually altogether different from President Bush's ‘Road Map'. It guided us intelligently through all the charges against Dr Wakefield, in the chronological order in which the offences had ‘apparently' been committed. Following an introduction and a ‘discussion' about each group of charges, Mr Coonan would put the charges to Dr Wakefield asking if he had done those things with which the charges condemned him. It soon became apparent that every charge was no more than a puff of smoke that could easily be dispelled by alluding to the copious paper-work, some of which was new to the prosecution, but most of which should have been on file and might have been easily cited by them.
To give an example. There was no evidence at all that Dr Wakefield, as a research worker, had anything to do with the clinical operations and procedures carried out on the Lancet children. In order, however, to involve him in an illegitimate area beyond his terms of employment, the prosecution had claimed that, in the case of the children , Dr Wakefield had ‘caused' these procedures to occur. This ludicrous wording makes it appear that one day Wakefield had been charging through the hospital, scalpel and colonoscopy equipment at the ready, when he had tripped and fallen crashing into and a member of the clinical team who had caught the equipment and been jettisoned into the procedure. The truth of the matter was that far from ‘causing' the procedures to occur, Dr Wakefield had had nothing whatsoever to do with them and could, literally, have been miles away from that particular operating theatre at the time any procedure was carried out.
Once Mr Coonan had talked through a procedure and Dr Wakefield's non-involvement in it, he would then ask; ‘Did you in fact have anything to do with ‘causing' the colonoscopy to take place?' To which Dr Wakefield would state in a clear and measured manner ‘No'.
The defence was, from the beginning, beset with semantic problems, mainly involving what parents have told their GP's about Dr Wakefield and ‘his' department at the Royal Free. At the end of the first week on Thursday April 3 rd , these problems were alluded to by Mr Coonan, who asked Dr Wakefield to comment on the semantic contortions involved in the case.
This recurrent theme, reminded me that I had returned to a London, where the Metropolitan police force are happy to make the most awful grammatical error. As I travelled on the bus past New Scotland Yard, I found myself re-reading the continuous band of blue electric text that crawls along the side of the building thousands of times a day. The message reads: ‘Extraordinary people wanted to be a special constable'. During the first part of the hearing in 2007, I felt forced to complain about this public blunder to a machine gun-carrying officer on duty at the porta -cabin that now passes for an entrance to Scotland Yard. The officer nodded sagely while he fingered his machine gun, ‘Yes Sir, I'll pass it on', he said, looking round in case he needed support.
I bring this up simply to raise the fact that we really can't wonder that so many ordinary people make semantic, grammatical or syntactical mistakes; mistakes in letters involving issues of hospitals, illness and the administration of their own or their children's treatment. In fact in terms of trying to avoid responsibility, most of the world's powerful speak in a different language. The parent who says ‘I managed to get my son referred to Dr Wakefield' – who unbeknown to them is a research worker – ‘at the Royal Free Hospital', is doing nothing more than trying to make a clear statement about their right to involvement in their child's treatment, in a powerless situation.
Hazarding guesses about why prosecution witnesses, other than parents, have not told the whole truth has to strike just the right note if it is to appear plausible to a jury. It was clearly evident as we got into the rehabilitation of Dr Wakefield, that his lawyers had suggested the most appropriate phrase to use was that this or that letter-writer or witness must have been ‘confused', when suggesting for instance that Dr Wakefield had been paid thousands of pounds by the legal aid board to assault sick children. There are dangers with this formulation, if you say it too often you are in danger of suggesting that everyone except yourself has left the rails. Personally, if one can do it without being too abusive, I'm all for calling a spade a spade. The tone might be varied, from ‘Clearly the witness lied through his teeth', to the slightly more reconciliatory, ‘I fear the witness, who is evidently a drinker, has been let down by his memory, on this matter'. In times of real stress, where sarcasm is inevitable it might be best to fall back on Mandy Rice-Davis's, very adequate, ‘He would say that wouldn't he'.
Unfortunately for the prosecution, after a week, there has so far been not one question of involvement put to Dr Wakefield with which he has not answered with a resounding ‘No'. In fact, in the charges traversed so far, there has not been one which entertains an iota of doubt, not one charge in which Dr Wakefield has had to deal, in the words of Sugar, in Some Like it Hot, with ‘the fuzzy end of the lollipop'.
After laying the initial basis for Wakefield's life and work at the Royal Free, Coonan moved on through all the areas of conflict that the prosecution had suggested crowded Dr Wakefield's working life. One of the first areas of conflict was Wakefield's work itself. In relation to this, Coonan introduced a number of other medical researchers and other published papers that had been concerned with the same area of research. This was clearly to establish the fact that Wakefield was not a lone ‘cowboy' as has been suggested by the prosecution, but was following a research trail laid down by some of the most established academics, including one who had given evidence for the prosecution.
It is worth looking at the past week in term of areas of conflict, and I hope that I will be forgiven for not recording these with the complex detail of their dates and surrounding issues. Most of the charges, brought by the prosecution, relate in one way or another to what happened around the writing, submitting and aftermath of the Lancet paper; how the 12 children who became the subjects of this paper had arrived at the Royal Free and how and by whom they had been treated and researched.
At the centre of the charges and crucial to them was the idea that Wakefield had constantly overstepped the boundaries of his research work; for reasons of ego, one presumes, and of course the desire to rake in the money. Although no clear motivation for any of Wakefield's apparent wrongdoing has ever been offered by the prosecution.
The first stage in this megalomania, the prosecution suggests, involved Wakefield reaching out to general practitioners (GPs) around the country and pressing them into referring their child patients, who Wakefield had heard about via their parents, to him, so that he could subject them to ‘the knife' or ‘the needle' and his mad theories. In this Fantasy Medicine scenario, Wakefield was working hand in glove with both JABS a subversive anti-vaccine organisation and the renegade lawyer Richard Barr. Barr was principally concerned with making a lot of money, followed by a long held desire to single-handedly bring about the economic collapse of the pharmaceutical industry.
In and around 1996, the first parents who suggested that their children had been damaged by MMR or MR began to contact Dr Wakefield. According to the prosecution, Wakefield had done his best to seduce these parents and ensure that they brought their children by whatever unethical route, to be treated by him personally at the Royal Free Hospital. Again according to the prosecution, once the children were at the Royal Free, Wakefield, after carrying out his own diagnostic assessment of them ordered a battery of tests. Many of these tests, it was alleged, were dangerous and against the interests of the children concerned. What had not been entirely clear from the prosecution case was whether or not Wakefield had personally carried out the operations and procedures, perhaps even for the febrile prosecutors such a charge might have sounded too loopy, so they settled with the magical formulation, ‘had caused to happen'.
The grandest and most glaring hole in the prosecution case, had to do with Ethical Committee approval for a research project that hadn't actually taken place. Because the prosecution had acted on Deer's ‘bad brain-day' narrative, they were insistent from the beginning to the end of their case that Wakefield had not gained research ethics committee (REC) approval for any of the things that he was supposed to have done. In fact the protocol (No.172/96) that the prosecution founded the majority of their case upon, was the protocol for a research project which had not, at that time, begun. It was not, as the prosecution had been led to believe, in any way related to the data reported in the Lancet paper.
All of the ethical approval that was necessary for the work on the Lancet paper case-series had been granted under protocol No. 162/95. This protocol had even been renewed and modified in January 1997, so as to include a more extensive research agenda. Because the prosecution had inflated Dr Wakefield's role, having him do everything from clerking-in hospital patients, to personally carrying out procedures on those patients, they had maintained that a great swath of ethics committee assent had been needed. In fact all Dr Wakefield had ever needed was REC approval for lab tests on biopsy tissue taken during clinically directed diagnostic procedures; this he had.
The other major offence argued by the prosecution related to the money they said had been given to Wakefield from Legal Aid, that he had not only accepted – apparently a sin in itself - but also never declared in the Lancet paper. All of this was utter baloney, one of the charges even suggesting that Wakefield had himself personally received the money and used it to finance clinical experiments on the Lancet children. It was explained clearly that all the legal aid money that was claimed by the Royal Free, went towards the salary of a research worker working on a quite different area of research. Not only did this money not go towards any research or clinical work on any of the Lancet children, but Dr Wakefield didn't see a penny of the money. These facts, however, don't completely resolve the other argument about the money - that of conflict of interest - that now, in the contemporary research environment, might be declared even if it has no actual link to the project written up in a paper. What was happening and what did happen in the late nineteen nineties, however, we are still to see from the defence perspective.
Being led through your evidence in chief by Kieran Coonan, is not so different from being cross examined by him. Even during his most hospitable moments he appears slightly bad tempered and dour enough to signal apoplexy if the defendant responds mistakenly. However, he moved through the various areas on his route-map like a panther stalking an easy prey and Wakefield simply told the truth. Neither of them so much as stopped the coach for coffee, or dawdled to gossip. Very occasionally Dr Wakefield provided the panel with a short talk on a specialised professional area, but on the whole the evidence shot by.
Only when it came to dealing with the 12 Lancet paper children in detail, did Dr Wakefield's evidence-in-chief seem to grind to a halt and this was no doubt because everyone in the room had sat through this recitation from different perspectives on about five separate occasions. All the prosecution evidence in relation to the children was denied by Dr Wakefield. ‘No' he had not himself referred this child to himself at the Royal Free. ‘No' he had not examined this child at an out-patients surgery. ‘No' he had not prescribed treatment for this child. ‘No' he had not carried out this or that procedure on the child. ‘Yes' he would have expected to have Research Ethics Committee approval for his biopsy samples to be removed. ‘Yes' he would have expected to have REC approval to research these samples in the laboratory. ‘Yes' he did have research ethics approval for these things. ‘Yes' this was under protocol 162/95.
Along with research ethics committee approval, came the thorny subject of parental consent, both for the clinical work on children that didn't actually have anything to do with Dr Wakefield and the research work on biopsy samples that he was involved in. In every case the defence produced the parental consent form that the prosecution claimed had been missing.
On all these matters, the record appeared straightforward. The prosecution had in fact relied almost completely on guess-work, innuendo and, dare we say, malice. It is true of course that the correspondence in most of these cases is studded with minor errors, misplaced names and addresses of departments and doctors. It is, apart from being ‘confusing', absolutely inevitable that GPs for instance approached by parents who had seen Dr Wakefield in the media, would write to the Royal Free asking that Wakefield look at the child whom they were referring; and equally inevitable that Professor Walker-Smith the renowned paediatric gastroenterologist would send a note to Dr Wakefield, a part of the same team, informing him of what treatment he advised for any case.
One of the most serious and bizarre avenues down which Dear Brian had taken the prosecution case, was that of transfer factor. According to Dear, this was a vaccine in major competition with MMR, and it was this competition that motivated Dr Wakefield. The only real problem with this story was that it was completely wrong. There was no proposal to use transfer factor as a vaccine prophylactic against mumps, measles or rubella or for that matter any other virus. Wakefield had rather, proposed its use experimentally as a kind of ‘morning after' vaccine for those children who, having been adversely affected by MMR, were unable to eliminate measles virus.
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However you look at the story of the defence case that has emerged over the last week, there has not been one rumple or minor schism in the logic and simplicity of the tale of everyday working folk at the Royal Free Hospital. The defence case does, however, raise in bright lights and large letters, the question of whether the prosecution has failed to do their job properly, through either malign intent or simple incompetence.
One was left wondering, firstly how the prosecution could have built such a baroque edifice from such mundane facts and second, how much money and embarrassment the GMC might have saved had they overthrown convention and presented the defence first. By the end of Monday 31 st of March, it was evident, at least from the defence perspective that almost nothing on the prosecution Bill held up to scrutiny.
There is one slightly more complex worry about how the GMC came to fall into line behind Dear Brian. Like the Crown Prosecution Service and the police themselves, the GMC does not have an absolute duty to prosecute. However, with the decision to prosecute does come the responsibility to thoroughly investigate the charges involved in any complaint. One is bound to wonder how seriously the GMC took this responsibility in the case of Dr Wakefield.
After a week of listening to Dr Wakefield describe all the charges against him in simple and everyday terms, two things might occur to the intelligent observer. First, how is Miss Smith, left holding such a tattered banner, going to proceed when it must be evident, even to her, that she was only ever briefed with a marginal percentage of the truth. Having winged-it through the prosecution case, with no opposition, Miss Smith is now faced with the most difficult task of cross-examining an innocent man in an attempt to get him to speak untruthful words.
One of my colleagues suggested that perhaps she will lay down her weapons and back out of the case gracefully. Personally, I'm not going to hold my breath on this option. Instead I'm putting my money on Miss Smith coming out of her corner fighting. Only recently, I had the misfortune of being entertained by an unscrupulous prosecutor whose style of berating the defendant took me back to the Robbery squad trials of the seventies. During these trials, the court room reverberated with the loud claims of both prosecution and defence council as they intoned; ‘I put it to you that you are lying now and that you have been lying throughout the whole of your testimony. I put it to you that you are in fact, a liar, a congenital and practiced, complete and utter, liar, Sir'. Clearly this is the only line Miss Smith has up her sleeve that might convince the Panel that the prosecution story can hold even the thimble full of the water that has been poured over the three doctors.
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There are few moments of true poignancy in the GMC hearing as most everything is so heavily engineered and false. However, as one of the mothers involved in CryShame believes and keeps reiterating, it would be as well to keep in mind what the campaign and the hearing is really about. It is exactly this that Alan Rees of Sweden and his son Marcus have highlighted now on two occasions (to read about Alan's campaign on behalf of Marcus, go to www.vaproject.org/vaccinetrials/sweden.htm.
Both Alan, who has fought an unstinting legal battle over Marcus's vaccination damage, and Marcus, wear plastic yellow, illuminated, work waistcoats with a message about Marcus's autism on the back. On Thursday April 3 rd , Alan brought Marcus to the hearing. They entered quietly, mainly because Alan had his hand over Marcus's mouth. However it was not long before Marcus became himself, making loud repetitious humming noises. After some time, the hearing stopped and the usually officious GMC secretary who has control of the hearing, approached Alan and Marcus. Thankfully she had obviously practiced her bouncer skills, for instead of the rather alienated and rude manner in which she asked them to leave last year, her manner this year was utterly polite and apologetic.
Alan, I am sure had no intention of disrupting the hearing or in any way embarrassing Dr Wakefield, he wanted only to make the point that at the base of this extravagant hearing is not, as Dear Brian suggests, a fake doctor and a handful of children with constipation, but a life-numbing grief which hangs in the claustrophobic air over the landscape like the darkening moments before a terrible storm.