Expert in What? The First Expert Witness for the Prosecution

September 27th to October 3rd

by Martin J Walker


The social network beyond the hearing - the medical establishment, the government and the pharmaceutical corporation - used the two week suspension to good effect, taking the opportunity to make a number of statements about the guilt of Dr Wakefield. It sometimes crossed my mind to wonder why the medical establishment and the government don’t simply announce the guilt of the three doctors, without all this legal palaver; after all, everyone in the country knows that Dr Wakefield is guilty, even if they can’t quite remember what of.

During the recess, the JCVI took the opportunity to announce their decision to look at the possibility of adding chickenpox vaccine to MMR.  This announcement was not only a great opportunity to enforce the obvious point that multiple vaccines were perfectly safe but also to rubbish Dr Wakefield and his ‘discredited’ idea that MMR is solely responsible for every case of autism in the known world (authors sarcasm).

The idea of the inclusion of chickenpox vaccine was floated on the usual raft of the numbers of deaths caused by this viral illness. No illness is too insubstantial to be called into the service of the vaccination programme. One hopes that when, some time in the near future, Big Pharma introduces its vaccination for male pattern baldness, with the argument that this disfiguring illness kills thousands of men and women annually, the British public might wake from its somnambulist trance. As one of the papers remarked:

"Chickenpox is a highly contagious virus. It is effects are usually mild in children. However, it is more serious for adults and can sometimes be fatal. It causes about 20 adult deaths in England and Wales each year."

One of the major concerns, according to the media, was that the vaccine could cause shingles later in life when the body's naturally immunity weakens. It was also suggested that certain groups have already argued that children are at risk of being 'over-vaccinated' and that their immune system can be overwhelmed. Anonymous ‘doctors’, however, speaking through the media ‘reassured patients that this is almost impossible’; which is a bit like almost being a safe pedestrian but being knocked down and killed by a car.

Even the most ardent critic of conspiracy theory might have been set thinking by the comments offered on the Radio 4 ‘Today’ programme by Sir David King, the Chief Scientific Adviser to the government. After talking about the vaccination programme and the possibility of joining a fourth viral strain to MMR, King injudiciously made the point that Dr Wakefield’s ideas have been discredited and that he was guilty of research misconduct.

Inevitably there was no mention of King’s conflicts of interest, or of his various connections. King is a member of the Science Advisory Group of the Science and Media Centre, the organisation set up by the rabid rationalists Dr. Michael Fitzpatrick (ex-revolutionary communist) and Lord Dick Tavern (the pharmaceutical company lobbyist, insurance sales-man and ‘political’ buddy of millionaire Lord Sainsbury (New Labour benefactor and ex-science Tzar). The Science Advisory Group is directly funded by, amongst other sources, the Association of British Pharmaceutical Industries (ABPI). King is also closely linked to the Royal Society, which despite its fabulous historical reputation has been completely overtaken by mercenary commercial interests which have made science in contemporary British society resemble a flea market run by the Russian Mafia.

These are the same people who destroyed the professional life of Dr Arpad Pusztai the Rowett Institute researcher, whose research concluded that genetically modified potatoes damaged the health of mice fed on them. A full scale campaign of lies distortion and planted stories was run by Royal Society members, guided by staff under the instruction of Lord Sainsbury at that time head of science policy and a major figure in the bio-genetic industry who had tried to introduce Monsanto’s genetically engineered crops into Britain without any public discussion.


During his interview on the ‘Today’ programme, King suggested not only that Dr Wakefield was guilty, but that the Royal Society had long had a code of ethics for scientists which covered the declaration of conflicting or vested interests.

What King did not make clear, was that this code of ethics had only been launched in 2007, a good ten years after the events presently being mulled over by the GMC. Nor did he explain the aetiology of this code, which was actually helped on its way by those with commercial and ideological interests at the Royal Society.

The Royal Society has, over the last decade, been keen to adopt new regulatory codes in relation to science, such as the code of practice drawn up to stop non-scientists commenting on science in the media. This little gem attempts to ban personal stories about illnesses, therapies or medicines and rules that medicine and health might only be discussed in terms of double-blind, placebo-controlled trials and written up by scientists, or science journalists. If you have ever wondered why, in 1996, 1997 and 1998, British newspapers were full of the personal stories of adverse reactions to MMR while now, ten years on, it is almost impossible to draw attention to the condition of the MMR children, you need think no further than this regulatory code (See Brave New World of Zero Risk).

The idea for developing such a universal  ethical code of conduct for scientists came out of a 2004 Carnegie meeting - a regular informal meeting of science ministers and advisers from G8 countries - and was moved forward in Britain by Sir David King and the Council for Science and Technology (CST), the UK Government's advisory body on science and technology policy issues. Discussion at the Royal Society resulted in their report ‘Rigour, respect and responsibility: a universal ethical code for scientists’, and in January 2006, the CST published the findings of its consultation. The Code was officially unveiled at National Science Week in March in 2006.

The idea that this code of conduct is universal and will apply to pharmaceutical companies, should be used as one of the main jokes in the next red nose day. Especially as this charity raises money for Africa, a continent very close to the hearts of many pharmaceutical companies.

Headlines announcing the code trumpeted, ‘Code Sets Out to Regulate Science’. It called, news reports said, for rigour, honesty and integrity among scientists, who should take steps to prevent corrupt practices and professional misconduct and declare conflicts of interest. Scientists should ensure that their work is lawful and justified, and they should ‘minimise and justify any adverse effect’ their work may have on people, animals and the natural environment. Which, when you think about it, is a load of bunkum.

Not only do pharmaceutical and chemical companies kill, maim and torture millions of animals in toxicity trials, but it is generally recognised that pharmaceutical drugs are still going through extended experimentation when they are prescribed to the public. On top of this, pharmaceutical companies are entitled to keep secret their trial documentation in order to safeguard the competitive profitability of their products. And what does the code say about giving legal protection and financial rewards to whistle blowers in industry?

On 13 March 2007, ‘following a successful pilot among Government scientists’, Sir David King issued a challenge to the rest of Government and the wider scientific community to adopt the Code.

Approaching the GMC building on Thursday 27th September, the day the hearing began again, Anthony Gormley’s nude male statue which stares into the GMC building and is mirrored by the same figure on the inside looking out, reminded me of my age and the fact that human beings get rusty as time passes.

Returning from the recess was a little like returning to school after the holidays. The fact that everyone is in the same place as they were before we went home, that the same faces are apparent, lent the proceedings an air of surreal intractability. I got the sense that perhaps these people had been here while we were away, in a frozen tableau.

Arguing against this idea was the fact that Miss Smith seemed to have had her hair done - although I couldn’t put my finger on exactly what she had had done - and Dr Wakefield was not present. Dr Wakefield had decided that the fourteen month-long trial was interfering with his work in America, where he is still working with other doctors helping children with serious IBD and autistic conditions.

Arriving just on time on the Thursday morning, an apparently new and insistently officious young man behind the GMC reception refused to open the doors to the hearing for me until I signed in. Not wanting to miss any of the proceedings, I said that I would do it at lunch time, but he still refused. This increased the feeling that I was returning to school after the holidays.

Inside the hearing room, a cold sun streamed through the glass walls. The first submission of Thursday morning was an apology for the absence of Dr Wakefield. Following this, like a music box gradually turning to the right speed, everything returned to normal, the first witness was introduced and Miss Smith began again her indefatigable and relentless repetition of the prosecution case. This time she was getting Professor Sir Michael Rutter to agree with her various concerns about the way that the children had been treated, or the way in which the three doctors had lapsed into research when they were supposed to have been dealing with the children clinically.

Professor Rutter is a tall, thin man with broad shoulders and white hair which surrounds his balding pate, like the gaseous circle round Mars, but curling up at the back. As time goes by - for Rutter is to be in the witness chair for almost a week - he begins to drape himself over the witness chair, his sharp knees almost touching the underside of the table and his arms on occasion dangling down the side. Also, as time goes by, he proves to be an affable man, not at all officious as might befit his place in the academic and clinical hierarchy. He is also seemingly fit and full of energy. He presents himself as likeable and fair minded.

Professor Sir Michael Rutter, qualified in medicine ultimately specialising in autism, with a particular focus on the nature of the psychological aspects characterising children with autism. He is a psychiatrist who has spent some 20 years on the ethics committee at the Maudsley Hospital. Miss Smith makes a point of revealing that he was primed as an expert witness for Merck in the claim for compensation taken by the parents against the MMR manufacturers. Rutter in turn makes the point, quite strongly, that the case never actually got to court. Why he feels this makes his conflict of interest in this case any less potent he doesn’t tell us.

At the end of his evidence, when it is suggested by the Chairman of the Panel that he ‘acted for’ the pharmaceutical company in the compensation case, he bridles at the term, telling the Panel that he was an independent expert.  One presumes that experts for the claimants might equally lay claim to such independence?

With the possible exception of Professor Zuckerman, Rutter will turn out to be the first real witness for the prosecution. He is an ideological witness, one who is not giving evidence to fact, but rather, agreeing with the prosecution critique of the behaviour, the methods, the language and the professionalism of the three doctors being tried.

In fact the use of Professor Sir Michael Rutter as an expert witness in this case does lead one to speculate about the nature of expert witnesses. While it cannot be denied that Professor Rutter is an expert on the psychological aspects of autism, this is not the subject of his evidence.  He was to end up giving expert evidence, with a broad brush, on the work of the whole gastrointestinal department at the Royal Free.  This, despite admitting at least three times during his evidence, that he knows nothing about gastrointestinal medicine. Perhaps even more oddly, at the end of his evidence, he assures the Panel of one thing; he cannot criticise the gastrointestinal work carried out in the department and his view in sum, is simply that the neuro-psychiatric aspect of the ‘work up’ on the children was lacking. 

This is not something that the defence would wish to argue about. In the main, the majority of the children had already been diagnosed with a disorder on the autistic spectrum before they arrived at the Royal Free. The authors of the Lancet paper, despite title changes, were quite definite about what they were writing about; a new syndrome which linked inflammatory bowel disease (IBD) to various behavioural disorders, the onset of which appeared, anecdotally to coincide with their children’s MMR or MR vaccination. 

Any hope that Miss Smith has spent the two week break practising her courtroom manner in front of the mirror, or her husband, are dashed when she begins taking Professor Rutter through his evidence-in-chief. Unlike those expensive automobiles advertised as going from 0 to 60 mph in 10 seconds, Miss Smith does the opposite; slowing almost to a stop after her first few words have reached the back of the room.

Through Thursday, Friday and the whole of Monday, Miss Smith presented, for the third time, the whole of the prosecution case; turning from her reading every ten minutes or so to let the Professor reassuringly nod his acquiescence. Rutter was equally uncreative in the presentation of his evidence. It was as if Miss Smith and he were in a three-legged race, both completely of one mind. Rather than elaborate on the various pillars of the case, Professor Sir M simply agreed wholeheartedly, and sometimes enthusiastically, with the propositions put by Miss Smith.

‘It was odd’, he agreed, to this and that. ‘It certainly wasn’t the way he would have done it’, he shook his head, to that or this. Miss Smith segued into a repeat trawl through the cases reported in the Lancet paper, and those who had been present throughout the whole hearing looked fearful of the boredom which was about to descend. After discussing ethics committee approval, Miss Smith picked up each case one at a time and travelled through referral, hospital induction, invasive procedures - particularly in respect of lumbar puncture - lack of consent for, and lack of notes with respect to, involvement in research.

Miss Smith bore witness to the howlers, sins, crimes and simple gaffes of Dr Wakefield, in the measured voice of a teacher explaining advanced calculus. I don’t know how Brian felt but I have to admit that by Friday mid-day I was tinkering with the idea of becoming an alcoholic. It was on Friday, while I was being mesmerised by the boredom of Miss Smith’s presentation, that the Kama Sutra came into my mind. As my thoughts languidly turned over, I tried to envisage Miss Smith presenting this text and others. I concluded quite quickly that any text would suffer the same fate, its juicy, sensual resonance sucked out of it and replaced by dry spiritless air.

I should not perhaps be so critical of Miss Smith, her brief is hopelessly lacking in substance and she must be hard pressed to turn her instructions into poetry or to exhibit her so far well-hidden legal skills. Even on some of the more purple charges, such as the illegitimate use of lumbar puncture as a diagnostic aid, Miss Smith found it difficult to make her point with a flourish. This was mainly because on the whole, even those witnesses most ardent to please, like Professor Rutter, could not agree that it was entirely wrong to use lumbar puncture as an aid to diagnosis on some children whose illnesses fell within the autistic spectrum.

In some senses, I also felt sorry for Professor Rutter as he was frog-marched through the prosecution case. This expert witness was not really being used as an ‘expert’. Rather he was being asked simply to add his weight to the prosecution. Perhaps the panel and others might have gained considerably from hearing Professor Rutter talk about autism, rather than see him perform like a nodding dog in the back of Miss Smith’s almost empty charabanc.

Miss Smith’s overview of the prosecution case which Professor Rutter gave his affirmation to, consisted of a wide range of issues, which I will list here as well as I am able: 

Rather than comment in any depth on each aspect of the prosecution case above, I would like to address a number of more general points which were important in Rutter’s evidence.

Certain matters are not deemed worthy of comment by the prosecution. One such matter is the real, rather than prosecution-sanitised, condition of the children and the crisis of coping and caring which the parents were, and still are, faced with daily. An understanding of the severity of the children’s condition is absolutely essential to a realistic understanding of the work of Dr Wakefield in the mid 1990s. We have not however, been given any indication of the real condition of the children by the prosecution.

Equally, at every turn, any mention of MMR or adverse reactions to vaccination is reduced to anecdote and the correctness of scientific scrutiny is juxtaposed with parents’ apparently hysterical  stories about the agony of their children after vaccination.

In fact, the corporate scientific establishment has been working hard for a decade, to expunge from the public culture the experiential narrative of people who suffer either environmental illness or adverse reactions to medical procedures or pharmaceutical drugs. The replacement of personal observation, human experience and subjective narrative, with the collective, rational narrative of scientific study is a complex phenomenon. One which I am not equipped to even begin discussing here. It is a subject that has, however, begun to dominate descriptions of illness in post-industrial society.

What it means for the subject is that the personal voice is no longer recorded or listened to. Taking this to its logical extreme, it might appear that, in the future, it will not be just the subjective discussion of illness which will be censured, but all matters of personal feeling. While the conflict taking place, between the feelings about our bodies and the rationale of science, has been rolling along since the end of the eighteenth century, its contemporary manifestations can be disturbing. This is why anyone who has experience of an autistic or regressively autistic child, who they believe to have been affected by vaccination, must make the most of presenting their subjective and experiential view of that child and their dealings with him or her.

The denial of subjective experience in environmental illness, or adverse drug reaction, began in the mid-eighties when individuals suffering from environmental illnesses were made the butt of jokes and ridiculed when they described how their bodies were responding to modern toxins. The early ‘quackbuster’ organisations consistently disputed the reality of such things as food allergy, saying that it was a mental aberration. Now twenty years on, we find that British society has some of the highest recorded rates of food allergy in the world. The same can be said of chemical sensitivity, now recognised by some of the leading medical authorities. Corporate medicine has consistently denied the environmental aetiologies of illnesses caused by chemicals for the last twenty years.

Perhaps the most central case, which is raised consistently in my mind during the GMC hearing, is that of Myalgic Encephalomyelitis (ME) or chronic fatigue syndrome (CFS). Quackbusting groups have singled this illness out for the last two decades, denying any organic aetiology and arguing that subjective recognition of it is due to mental disorder rather than an organic or biological condition.

In order to prize ME from the hands of the psychiatrists and psychologists, activists have argued for years that each patient needs a thorough bio-medical work-up which will throw light on the medical nature of the illness. Perhaps the most interesting matter brought to light by Rutter’s evidence, which reflects on this social, medical and political conundrum, is the fact that we see at the end of his evidence that he is really opposed to the idea of biomedical work-ups for children with autism - an idea woven into Wakefield’s approach. When Rutter disputes the biomedical basis of regressive autism he is defending a neuro-psychiatric position which some would say has stymied progress in medical research for the last half-century.

The third point I would like to make about Rutter’s evidence relates to the fact that it has become clear to me during the hearing, that the prosecution is utterly unwilling to take into account the weaknesses and difficulties that beset  NHS general practitioners (GPs). Rutter made the point consistently, that referral letters from GPs to the Royal Free Hospital were often inadequate in their descriptions of the presenting child’s symptoms and conditions.  There are clear reasons for this, the first being that GPs are general practitioners and most of them found themselves overwhelmed by  reports of specific gastrointestinal symptoms about which they had absolutely no expertise.

Perhaps more pertinent, it must be said that Dr Wakefield and the gastrointestinal team at the RF cannot realistically be held responsible for the general inefficiencies of the NHS. GPs rarely have sufficient time to analyse complex medical conditions. If this manifest lack of time is conjoined with a lack of knowledge of the problem under review and a lack of consultants in the immediate geographic area, it is more than understandable that, under pressure from parents, they quickly passed the children to those who were deeply involved in this particular problem at the Royal Free.

My final comment is intimately linked to all those above. Miss Smith has persistently presented this case against the three doctors as if it were an academic exercise in which all parties had the money, the time and the knowledge to progress steadily with an examination of the cases.  Underlying the assumptions of the whole hearing is a devastating critique of the three doctors on trial. The prosecution is saying that had it not been for personal and mercenary motives of the three, this public health blip would never have occurred; that it wasn’t real but generated by a small group of people who knew nothing about autism, its causes or its origins.

It is as if the prosecution is accusing the doctors of being soldiers involved in a small incident during a major battle. While the majority of the military were concentrating on trying to gain ground and push forward against considerable opposition, these three combatants had turned on their own troops, killing a number of them with friendly fire.  The truth of course is massively different. To use the same analogy, the whole of the forward moving army was actually at rest, apparently happy with the job that they were doing, while one unit, at an advanced post, was fighting a desperate battle with the enemy that threatened to over-run it.

While the whole of the prosecution case has settled on the children reported in the Lancet paper, no one has made mention of the fact that in the five years between 1993 and 1998 hundreds of parents made their way to the gastrointestinal unit at the Royal Free. They went there often with their own determination, because this was the only collection of doctors in the whole of the UK who were dealing with the public health crisis which had occurred following the introduction of the various MMR or MR products after 1988.

All these points, I am sure, will come out during the presentation of the defence case. I feel a need to introduce them now because they were seriously omitted from the prosecution case and the evidence of Professor Sir Michael Rutter. The central matter of the denial of the experience of both parents and children, is perhaps the most upsetting aspect of this case and I feel that there will never be enough space or time to bring this tragedy to the surface.

The Deconstruction of Professor Rutter

The repetition of the whole of the prosecution case, together with Rutter’s pleasant, discursive and sometimes jokey presentation  made me feel profoundly despondent during Thursday, Friday and the following Monday of the resumed hearing.  It wasn’t that the prosecution case appeared any stronger than it had previously; it was just that, like a Chinese water torture, the constant drip, drip, drip, of repeated allegations made the defence look vulnerable. And of course, there was the matter of feeling isolated and vulnerable myself, when for those three days the only other person in the public ‘enclosure’ was Brian.

Never, however, has the saying, ‘every cloud has a silver lining’ been more apt. By the end of Tuesday October 2nd, I was feeling privileged to have observed one of the best cross- examinations it has been my fortune to see.  During the 1970s when I was attending court cases regularly in different capacities, I had the honour of working on a number of occasions with Michael Mansfield now a QC. Some of his cross examinations of Robbery Squad detectives linger still in my mind, as no doubt will Mr Hopkins’ cross examination of Professor Sir Michael Rutter.

There is a sense of utter finality, even at the beginning of good cross-examination. The cross-examination itself is not just a hunt, but more dramatically, the denouement represents the last spring of the chase which fixes the opposition to the ground. The art of cross examination is not just apparent in the measured contesting of the damaging points made by the witness, but in the ability of counsel to ‘shut the witness down’; to hold the witness in an immobile position.

Mr Hopkins, acting on behalf of Professor Simon Murch, did just this, and with sublime competence. Whenever Professor Rutter tried to wander off into muck-spreading arguments, Hopkins descended on him with an ‘I think you have misunderstood the intention of my question’ or a quietly spoken but forceful ‘That’s not the point I was making’. From 9.45am, when Hopkins rose to begin his cross-examination, until 1.00pm when he finished, he completely controlled the witness. Quietly but with a focused intent, he tied Rutter  up and de-experted him.

In terms of argument, what Hopkins was able to do was to make it clear to the panel that much of what Professor Rutter claimed during his evidence-in-chief was little more than personal opinion. Perhaps even more exactly, it was personal opinion heavily biased towards the neuro-psychiatric axis of the arguments around autism.

He began his cross examination by rescuing Dr Wakefield from the isolated corner into which Professor Rutter and Miss Smith had painted him. Hopkins made it clear that there were actually four hospital departments involved in the clinical work of caring for the children who attended the Royal Free. That there were a number of ‘responsible consultants’ making decisions from day to day about treatment and investigations.

In effect, Hopkins re-introduced the earlier evidence given by prosecution witnesses which had aided the defence. For almost two months we had listened to evidence which constructed the collective work of general practitioners, consultants and finally whole hospital departments. Listening to the description of this construct, and understanding the work in its social and professional context, it became increasingly difficult to imagine that Dr Wakefield, Professor Murch or Professor Walker Smith could have been acting at all improperly, let alone as a small isolated immoral conspiracy.

Although Hopkins laid siege to each strand of Rutter’s evidence, his strategy was most pronounced when dealing with the matter of lumbar punctures. From the beginning the prosecution has made the case that the use of lumbar puncture, as a diagnostic aid on children, especially children with any kind of autistic disorder, is an abomination akin to torture. Rutter, however, when speaking on lumbar punctures, was at best a reluctant witness. At his most transparent, he was happy to admit that in cases of disintegrative disorder or regressive autism lumbar puncture was necessary in order that encephalopathy could be confirmed or disregarded.

It was apparent that Rutter was concerned at having made this admission and he tried to lessen its force and its use to the defence by claiming that next to none of the cases in the Lancet paper could be shown to have a disintegrative disorder and in other cases lumbar punctures should not be used as a general investigation.

Very gradually, Hopkins introduced papers to the tribunal from Professor Chris Gilberg who has carried out clinical research in Sweden. Hopkins described him as having been an expert in autism for 33 years and pointed out that in the mid 1990s Gilberg was considered a leading authority. But unlike Rutter, Gilberg was in favour of using lumbar puncture.

Hopkins took Rutter through a series of Gilberg’s papers all of which advocated the use of investigations including lumbar puncture. Rutter began contesting Gilberg’s work, suggesting that he had made a number of mistakes in his career, having evinced arguments which had proved to be wrong or fallacious. This defence came across as the expression of professional jealousy and not as scientific evidence.

Hopkins turned the ratchet up a notch with each paper which he put to Rutter. As the papers mounted, so did their authority and so did the number of authors who favoured the use of lumbar puncture as a primary biomedical investigation. Besieged, Rutter was thrown back on the odd argument that while this might be the case in the rest of the world, in Britain it was not considered an acceptable practice.

Gradually, Hopkins began to develop a more important argument relating to the legitimising of bio-medical investigations. By introducing the idea of the medical work-up in cases of autism, he made it apparent that there was, is and historically always had been a serious conflict between two schools of thought on the diagnosis and description of autism. These two schools are on the one hand those who believe in an almost entirely psychiatric approach and those who believe that a whole battery of biomedical investigation should be carried out in an attempt to find a medical explanation of autism. While neither of these schools of thought was exclusive, the psychiatric partisans had held sway almost without argument for the last thirty years. This school was, in fact, only now beginning to accept that there might be environmental factors involved in autism.   But while Gilberg cited the supposition that one in three cases were based upon a ‘medical’ condition, Rutter would agree only to a possible one in ten ratio. 

Some individuals who support the non-medical paradigm for autism, however, still argue vehemently that there are no environmental factors involved, first amongst these people are those who support the pharmaceutical and vaccine industry, such as those in Sense About Science, like Michael Fitzpatrick.

One of the biggest problems for the biomedical school, is that, because pharmaceutical drugs and vaccines count as environmental factors, the school faces an apparently unlinked but powerful opposition. There are similarities here again with ME. The biomedical school, which advocates a wide range of biomedical tests for those presenting with ME, face major opposition, not just from the psychiatric school, but also from the chemical companies whose toxic environmental products and processes might be a contributory factor in some cases.

While presenting Gilberg’s papers, Hopkins drew attention to one of Gilberg’s primary suggestions, that there was a serious lack of comprehensive biomedical work-up in autistic cases. The gap between Gilberg and Rutter, and therefore between the Royal Free team and an entrenched psychiatric view of autism, was obviously considerable.

Following the Gilberg papers, Hopkins moved on to deal with a few more of Professor Rutter’s expert views, such as his half-hearted support for the inclusion of bowel pathology in diagnosing cases, and more simple things, such as his views on the patient consent form used by the Royal Free team.

At the end of Mr Hopkins’ cross examination, it was difficult to imagine that the panel had not received the message that Professor Rutter was far from independent in his view of Dr Wakefield’s research. I personally felt like clapping. It seemed then that whatever matters Miss Smith brought up, it would be extremely difficult for her to resuscitate her expert witness. It was also difficult to envisage what further damage Mr Miller, acting for Professor Walker-Smith, might do to Rutter when he cross-examined him.

At 2.00 pm on the same day, Mr Miller got to his feet. Of the three barristers, Mr Miller appears on the surface to be the most chatty and sympathetic. However, having seen him in action it is easy to understand that his introductory bonhomie is simply a distraction. It was never more so than in his dealing with Professor Rutter. After the exchange of a few pleasantries, Mr Miller plunges straight into the heart of his cross examination. This plunge was like the descent of a cage taking miners down the pit. His voice took on an edge which the tribunal has not previously heard.

Mr Miller puts it to Professor Rutter that the case-series reported in the Lancet is not the study ‘172/96’, which he and Miss Smith have made the core of the prosecution case.  As the argument developed, with Mr Miller putting it to Professor Rutter that the children in the Lancet paper had clearly been treated on the basis of clinical need and not as research subjects, for the first time Rutter’s response became uncertain. He said, ‘My impression is that this is research’.

Mr Miller was positively cruel in his repost, ‘This is the danger of poring over the documents!’ This comment struck at the very heart of the shaky prosecution case and revealed what appeared to be a massive schism in both the prosecution reasoning and the paper work. Miss Smith, who has been placidly reviewing notes, and Mr Owen, her junior, suddenly re-engage with the hearing, both looking slightly stunned.

Mr Miller drove his point home. In answer to Rutter’s assertion that the children do not represent a homogeneous group, like good research subjects, Mr Miller replies, ‘No one ever went out to look for these specific types of children’.

And on the matter of the research consent forms which Professor Rutter and the prosecution have been adamant are missing from the patient notes, Mr Miller was again scathing. ‘You also say that there are no research forms in the children’s notes; was this because there was no research?’

When Professor Rutter realised what had happened, I would not have been surprised if he had addressed Miss Smith with the words, ‘This is another fine mess you’ve got me into’. To his credit, however, Professor Rutter seemed to suffer the cross-examination in good heart, he continued to protect the prosecution case while sounding almost as if he recognised that, for the moment at least, he was on the losing side.

Keiran Coonan did not cross examine Professor Rutter and it seemed at the end of the day almost as if Dr Wakefield’s work was not at issue. By Professor Murch and Professor Walker-Smith sharing responsibility for the whole department, the defence had reinforced their point that the programme for the treatment of children at the Royal Free had been undertaken by a wide variety of individuals and specialists.

So there we had it. Research project 172/96 was actually a quite different project from the clinical work that had generated a review of 12 consecutively referred initial cases.  Cases seen at the Royal Free on the basis of clinical need. Once this had been exposed, one could not help wondering how Miss Smith could continue with a large part of her prosecution. One also had to wonder what the defence had left to throw at Professor Rutter on the next day’s cross-examination. Professor Rutter now appeared to be an expertless expert. He had been softened up by Mr Hopkins and then knocked out by Mr Miller. All the counsel on the defence table seemed to finish their day with eyes averted from prosecution counsel and the expert witness as if embarrassed by the enormity of the prosecution’s mistake.

The Day After the Debacle

If anyone thought that Tuesday’s revelations would radically affect the prosecution case, they were seriously disappointed on the Wednesday.  The hearing continued as if what had been said yesterday was just another point to argue.

During Wednesday morning Mr Miller effectively mopped up those issues which had been left open after Mr Hopkins’ cross-examination on the previous day. He spent some time going over each of the cases, disproving the prosecution case that the majority of the children reported in the Lancet paper had been referred to the Royal Free without mention having been made of them having any kind of bowel disorder. It turned out that only in two cases was there what I referred to in my notes as a ‘slightly lacking reference’ to bowel disorder. Like many of the other prosecution points, under scrutiny, this conflict turned to steam and hot air, once placed.

At the end of cross-examination by the defence,  Rutter’s entire case lay in tatters on the floor, and he was left repeating an earlier criticism that ‘the investigations were done without consulting with the other specialists (the psychiatrists and neurological specialists)’. Making the point even more specifically, he said, nearing the end of his cross examination, ‘follow-up is lacking on the neurological, psychiatric side. My criticisms are on the brain side and not on the gut side’.

With this final criticism it appeared, to me at least, that the whole case for bringing Professor Rutter as an expert witness was brought into question. To hear Rutter say that he had no criticisms of the gastrointestinal side of the work, but only the lack of psychiatric and neurological aspects of research or patient care, was to invoke the words of Mandy Rice Davies in the trial of Stephen Ward, ‘Well, he would say that wouldn’t he’. There can be little doubt, however, that this personal and professional bias is very far away from anything even vaguely resembling damning, or even ‘expert’ evidence.

For almost the first time during the hearing, I felt privileged to be present and grateful for seeing the legal art practised as completely and as exquisitely as one always hopes is possible.

During her re-examination, Miss Smith did her best to put the deconstructed Professor Rutter back together again, but one sensed an almost tired reluctance on Rutter’s part to be paraded round the stadium a second time. Even Miss Smith was unwilling to go through every argument which was necessary to push the case back into project 172/96 and so reserved her re-examination on this matter to a couple of perfunctory questions. This conveyed the impression of someone carrying on a rearguard action to defend a bridge that had already been blown up and fallen into the ravine, leaving the defender with no escape route.
Within a quarter of an hour of Miss Smith beginning her re-examination I was falling asleep again. Her voice came to me from a considerable distance, out of my hearing, like white noise in the background. In fact, I had heard what she was saying so many times before that, like a hypnotic auto-suggestion, as soon as she repeated the words, my eyelids began to fall and my head dropped to one side.

Next week, beginning slightly later than usual, the prosecution’s second expert witness, Professor Booth gives evidence. It appears that he might be more robust than Professor Rutter because he is an expert in gastroenterology. Following Booth, there will be a quick appearance of another expert - an immunologist - before the prosecution finishes its case. The hearing will resume again in the New Year.

*     *     *

On Monday October 1st, a cockroach was observed strutting around the base of the tea and coffee dispenser at the GMC. I wasn’t there for the aftermath of the discovery, but I have been told that after it was found, a cluster of lawyers and doctors from the hearing went into a huddle. After a long and sometimes heated discussion it was decided by all concerned not to report this public health threat. The doctors were concerned about being struck off following a four year wait for a fitness to practice hearing. The lawyers feared being taken before the bar council on the grounds that they had brought the GMC into disrepute by spreading alarum and despondency.