FAMILY JUSTICE AND THE FAMILY JUSTICE SYSTEM-LYNNE WRENNNALL

[Alison J Stevens]

Wrennall, L. 2010 Paid Pipers: Confronting the Problems Associated with
Experts in the Justice System, Journal of Social Criminology, March,
2;5-26.
http://socialcriminology.webs.com/jsceditions.htm

http://socialcriminology.webs.com/JSC%202.pdf

Experts Usurping the Role of the Court

“Indeed, it can be argued that whenever experts “diagnose” abuse,
suffocation, Non Accidental Injury, Munchausen Syndrome by Proxy/
Fabricated and Induced Illness, Shaken Baby Syndrome, sexual abuse,
homicide or similar, they are exceeding their role of providing the
court with knowledge in a particular field and usurping the role of the
coroner, judge and jury, whose responsibility it is to act as the
‘trier of fact’. Myers (1997:528-9) explores some of the relevant
debate in the context of whether experts should “diagnose” sexual abuse
or provide the court with the relevant evidence and leave the decision-
making to the court. Recent legal precedent in the UK, tends to
support the view that determining the cause of an injury or cause of
death is not, properly speaking, part of a medical diagnosis, it is an
outcome of the socio-legal processes that constitute the court case. In
other words, it is a ‘verdict’ not a ‘diagnosis’. One of the several
reasons that David Southall was found guilty of Serious Professional
Misconduct was because he exceeded the role of medical expert witness,
playing the role of investigator, interrogator and trier of facts that
were not in his possession. He was not legally empowered, not trained,
and was not competent, to fulfil these additional roles, and as a
consequence, he had caused considerable trauma and distress to members
of the public (GMC v Southall, 2004. 2007). In Oldham MBC v GW and PW
[2007] EWHC 136, Justice Ryder re-affirmed the principles set out by
Justice Charles in A County Council v. K, D and L [2005] EWHC 144
(Fam), [2005] 1 FLR 851 @ para [89] establishing that “the expert is
not the decision-maker as to whether the relevant death, injuries or
harm is the result of non-accidental human agency and whether the
threshold is satisfied, and does not have all the relevant
information,” rather this is the proper role for the court. The
delineation of the correct roles for the expert and for the trier of
fact would be facilitated, “if the medical experts were not asked to
express a view as to the cause of the relevant death, injuries or harm
on the balance of probabilities,” but were to provide the appropriate
information to assist the trier of fact to make the final
determination. Justice Charles produced the format in which this
information could most helpfully be set out. A similar delineation had
been made in the Australian context in R v LM (2004) QCA 192 Supreme
Court of Queensland in which the medical expert was said to have
usurped the role of the jury in submitting to the court, the
‘diagnosis’ of MSbP.

That experts are usurping the role of the trier of fact is readily
apparent in the vast literature on child abuse. Although Kemp et al
(2009) have argued that “No fracture, on its own, can distinguish an
abusive from a non-abusive cause.” the literature is awash with claims
that particular types of injuries are ‘pathognomic of child abuse’.
When finding that an expert’s evidence was faulty, Justice Ryder
defined the term ‘pathognomic’ as “especially characteristic or
diagnostic”. It was in the expert’s description of the child’s
presentation as pathognomic of Non Accidental Injury, “that the
mischief was done.” (Oldham MBC v GW and PW [2007]). The capacity of
injuries to provide evidence of their origins is highly disputed.
Justice Ryder also provided a caution against individual professionals
forming an opinion about the evidence prior to the amalgamation of
evidence from other professionals (A County Council v A Mother, A
Father and XYZ [2005]). By labelling injuries as ‘pathognomic of
abuse’, the medical expert is undertaking the decision- making role
that ought to be undertaken by the trier of fact and is forming a
conclusion that precedes the process through which the evidence from
multiple sources is adduced.

There are numerous examples in the literature of professionals forming
a priori assumptions about the causes of injuries. When particular
injuries arise, labelling of these injuries as ‘pathognomonic of
abuse’, substitutes an axiomatic leap for a painstaking and patient
collection of all the relevant evidence. The use of the term,
‘pathognomonic of abuse’ takes as proved, that which is requiring of
proof. The causes are read from the injury in a manner that obviates
the need to collect evidence from other professional and lay witnesses.
Examples of this axiomatic leap are particularly common in the
literature on sexual abuse and in Paediatric Radiology. Longeran et al
(2003) claim that metaphyseal fractures are “regarded as the most
specific radiographically detectable injury in abuse” and acute rib
fractures in infants “are strongly correlated with abuse”. Hobbs,
Hanks, & Wynne (1999:86) claim that a “depressed occipital fracture
is virtually pathognomic of abuse.” Even more explicitly, Boos (2003:9)
argues that “Two particular injuries are so pathognomonic of abuse,
that they should be regarded as abuse until proven otherwise.”
According to Boos “Any rib fracture in a young child is suspicious for
abuse.” but ‘Posterior rib fractures adjacent to the spinal column”
and “Breaks through the metaphysis of long bones… are almost
invariably inflicted.” (Boos, 2003:9). Londe, Marmor, Dandekar, &
Caughey, (2006:391) report that “metaphyseal chip fractures of the long
bones are considered nearly pathognomonic of abuse.” Similarly,
Kleinman, Marks, & Blackbourne, (1986) cited in Lonergan, et al
(2003) claim that “Of all the injuries observed in child physical
abuse, none is more specific than the metaphyseal fracture. First
described in 1957 by the eminent pediatric radiologist John Caffey,
metaphyseal fracture is virtually pathognomonic of abuse” (footnotes
removed). At times, outright discrimination is evident, as for example
when inaccurate markers of abuse, such as single parenting are regarded
as ‘Red Flags’ of child abuse (Boyers & Gutfeld, 2003:4).

However, the picture is nowhere near as definitive as this abuse
literature claims. “Each group of practitioners has their own
professional perspective on how such manifestations of bodily
abnormality may be known and given official meaning (D’Cruz, 2004:100).
One cannot deduce the cause of an injury, by merely examining the
injury itself. From a very strongly evidence- based position, Kemp et
al (2008) point out, “No one fracture in isolation is specific for
physical abuse”. Myers (1997: 528-9) argues that no particular symptom
is pathognomonic of sexual abuse. Barry & Hocking (1993) have
critiqued Hobbes’ (1989) claim that rib fractures are “highly specific
to abuse”. In relation to Shaken Baby Syndrome, Donohoe (2003) found
that most aspects of conclusions about “causation, diagnosis,
treatment, or any other matters,” were based on inadequate scientific
evidence and identified “serious data gaps, flaws of logic,
inconsistency of case definition.” (in Geddes & Plunkett, 2004).
The lack of scientific rigour in the concept of Shaken Baby Syndrome is
such that it stimulates a “duty to re-examine the validity of other
beliefs in the field of infant injury.” (Geddes & Plunkett, 2004).
As an appropriate caution, Scherl, et al (2000:96) provide evidence
that although many practitioners think spiral fractures are
pathognomonic of abuse, they are no more common in the cohort of
patients in whom the results of the child abuse investigations were
positive than other types of fractures. However, they were
overrepresented in the cohort that was subjected to Child Protection
investigations. Drummer (2004), states the matter clearly when he
points out that, “Many assume that forensic pathology is as evidence
based as other branches of medicine. This assumption is not
accurate.”...”
Value-Medical evidence..