Monday, March 31, 2008

Part Four: Closing Submissions: The Government Is Responsible For Destroying The Families; It Must Try To Repair The Damage;







The Goudge Inquiry has heard disturbing evidence about surviving children who have wrongfully been removed from their families as a result of Dr. Charles Smith's flawed opinions.

One of the toughest challenges will be to identify these children in the context of both criminal and child welfare proceedings.

Lawyer Suzan Fraser argues in her closing submissions on behalf of "Defence For Children International Canada" that, "we have a moral obligation to the children who may have been wrongly separated from their parents as a result of the opinions of Dr. Smith and Dr. Cairns."

"To abdicate our responsibilities in respect of those people would be irresponsible and immoral and arguably in breach of the United Nations Convention on the Rights of the Child such that “this must be done,” Fraser continues.

Defence For Children International accepts this position and submits that in order for confidence to be restored in pediatric forensic pathology, the Government must create a way to right a wrong.

Dr. Smith, through this inquiry, agreed to cooperate by identifying circumstances in which he gave evidence.

Dr. Smith in his evidence suggested that there may be three to four other cases where he gave evidence that were not the subject of criminal proceedings but were the subject of child protection proceedings.

Given the frailties of Dr. Smith’s credibility and his history of providing untrue information under oath, Defence For Children International submits that there must be a systematic review of his work to identify cases in which his opinion may have affected the outcome of a child protection proceeding.

At the child protection roundtable, (held by the Goudge Inquiry) Professor Bala proposed that legislation be enacted to provide for the identification of children who may have been affected by Dr. Smith’s work and the disclosure of that information to them."

Fraser,who advocates that corrective measures be advanced under a regulatory framework rather than waiting for legislative reform, says the identification process will be difficult because there are 53 different children’s aid societies.

She wants wants Justice Goudge to recommend the appointment of a task force which has the power and resources to identify the cases, review the pathology, notify the children and families involved,and then attempt to mediate s solution which is in the child's interest.

This appears to be an extremely difficult but manageable task if the government admits its responsibility for the mess and determines to rectify it.

Innocent parents would not have had their children seized from them - and children would not have gone through the horror and disruption of being taken away from their families without the intervention of government agents including police, prosecutors, social workers and children's aid officials in these cases;

This Blogster suspects that the Ontario government will be reluctant to undertake such a difficult and costly task.

I hope Justice Goudge will use his moral authority - having heard all of the disturbing evidence about destroyed families - to embarrass the government into taking prompt action.


Sunday, March 30, 2008

Part Three: Closing Submissions: Miscarriages of Justice And Ontario's Child Welfare System;



During the course of the Goudge Inquiry I have been stunned by the collateral damage caused by child protection authorities with respect to siblings when a parent is wrongly accused of murdering a child.

In most cases the damage happened at the outset - long before any conviction - while the accused parent was supposed to be presumed innocent.

We heard stories of children being seized from their still grieving parents and placed under the care and protection of a Children's Aid Society.

We heard stories of children baby's taken away from their loving mothers at birth and placed with strangers.

We heard about children who were ultimately put up for adoption into other families -the parents may never get them back.

Lawyer Suzan Fraser, who represents "Defence For Children International Canada" has done an excellent job at the Inquiry of reminding us that miscarriages of justice are not limited to the cases of wrongly convicted accused person;

Fraser reminds us in her closing submissions that Ontario's child welfare system is prone to miscarriages of justice too.

"The child welfare system has always been a poor cousin to the criminal justice system with fewer resources and less prestige than the criminal justice system," says Fraser.

"Challenges exist because of the lack of resources and prestige yet the effects of a miscarriage of justice in a child protection proceeding are unimaginable."

Yes, "unimaginable" is a very strong word.

But how else can you describe the horror experienced not only by the wrongly accused parent - but that experienced as well by the sibling that is being torn away from his or her parent in the circumstances;

Fraser also does a public service by pointing out that tunnel vision also contributes to miscarriages of justice in the child welfare system as she submits that "the need to guard against tunnel vision is as important in child welfare investigations as in criminal proceedings."

She also cautions that "social workers are slow to revise their judgments" - an apparent reference to Dr. Charles Smith who proved to be most reluctant to change an opinion once formed.

"Social workers need a greater acceptance of their fallibility and a willingness to consider that the judgements and decisions are wrong," Fraser adds.

"To change your mind in the light of new information is a sign of good practice, a sign of strength not weakness."

Fraser would like to see Justice Goudge make several recommendations aimed at preventing miscarriages of justice in the province's child welfare system, including:

0: Funding for counsel in child welfare proceedings;
0: Development and support of effective legal advocates for both parent and child in the child welfare proceeding through access to education initiatives;
0: Access to defence pathologists;
0: Funding for expert reports; and
0: Guarding against tunnel vision and confirmation bias.

Justice Goudge would do well to heed Fraser's advice.

Next posting: Part Four: Closing Submissions: And what about the children who were permanently given away?


Saturday, March 29, 2008

Part Two; Closing Submissions; End Surreptitious Police Surveillance Of Meetings Between Grieving Parents And Pathologists Or Coroners;

It seems pretty obvious that the days after the sudden loss of a child must be among the most torturous that a parent can experience.

It was therefore shocking to learn during the Goudge Inquiry that Dr. Charles Smith had agreed with the Barrie, Ontario police force to meet a bereaved mother in her home to report on his investigation of the death of her child - knowing that their conversation would be surreptitiously recorded by police.

It is impossible to know whether this was an isolated incident - or whether other pathologists and coroner's - supposedly independent -also see themselves as an arm of the police investigation into an infant's death.

For that reason, lawyer Suzan Fraser's recommendation that grieving parents should be spared this intrusive surveillance - on behalf of Defence For Children International Canada - is most welcome.

Fraser notes in a closing submissions filed with the Goudge Inquiry that whether they are under suspicion or not, "parents and guardians should be entitled to receive information about the death of their child, including the post-mortem report in a caring and compassionate environment free from police surveillance and judgment."

"If the opportunity is lost to catch an incriminating statement, so be it," she adds. "There are some forms of police action that ought not to be countenanced."

I personally couldn't agree more - and I hope that Commissioner Goudge will underscore the importance of pathologists and coroner's acting independently of the police - and not as their agents - when he pens his report, now due in September.

For those who have not read it, the earlier posting ran as follows on February 1, 2008 under the heading "Smith: A loyal member of the prosecution team to the end."

"At times it is good to get right to the point" the posting began.

"Dr. Smith has admitted that he saw himself as a member of the prosecution team - and that his role was to help the Crown win the case, "in the 80's," it continued.

However, on Wednesday morning the Goudge Inquiry heard startling evidence that he once agreed to go to Barrie, Ontario to meet with the mother of a deceased child - knowing that the conversation would be recorded by bugs which had been surreptitiously planted in her home by the police.

This was in 1996;

It is also noteworthy that Smith admitted in cross-examination regarded himself as a member of the prosecution team in "Sharon's case" where he testified under cross-examination at the mother's preliminary hearing that it was "absolutely wrong" to hypothesize a dog attack.

(The police theory was that Sharon had 81-wounds inflicted by knives or scissors - and that she had not been attacked by a Pit Bull as defence experts insisted - which later proved to be the case).

"I believe I could well have slipped into an advocacy role here," Dr. Smith said. "I believe that I knew by then that I wasn't to be an advocate ..."

This was in 1998;

Dr. Smith gave this evidence as an "advocate" for the prosecution, seven years after he was appointed Director of the Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children in Toronto - and just three years before his name was removed from the roster for performing forensic autopsies.

It was near the end of his career - far from the beginning;

The evidence indicates that Dr. Smith - or "Mr. Smith" as Lawyer James Lockyer, representing nine families insisted on calling him yesterday - saw himself as a loyal member of the prosecution team right to the end.

Back to the Barrie case:

Smith's cooperation in the police investigation is documented in an affidavit by Detective Sergeant Mark Holden which filed as an exhibit;

Here is the complete affidavit - dated January 28, 2008;

"1: I am a staff Sergeant of the Barrie Police Service. I was involved in the investigation into the death of X, who was a minor. I believe that revealing the name of the minor and his mother could jeopardize an on-going investigation. I have knowledge of the matters deposed to in my affidavit.

2: On Sept 4, 1996, the Ontario Provincial Police (O.P.P) intercepted a telephone conversation between Dr. Smith and X’s mother pursuant to an authorization granted under Part VI of the Criminal Code of Canada. Dep. Insp. McNeil of the O.P.P. learned from the conversation that Dr Smith intended to meet with X’s mother at her home in the Barrie area to discuss with her the results of the report on his post-mortem examination on X. Det. Insp. McNeil knew that listening devices installed in the house, also pursuant to a Part VI application, would likely intercept this conversation.

3: Dep. Insp. McNeil subsequently met with members of the Barrie Police Service including me, to discuss the situation. Det. Insp. McNeil telephoned Dr. Smith and advised him that the listening devices installed in the house would likely intercept his conversations with X’s mother.

4: Dr. Smith agreed to meet with the Barrie Police Service and Det. Insp. McNeil and he did so on Sept. 5, 1996, the day he was scheduled to meet with X’s mother. The meeting took place at the Barrie Police Service police station and lasted approximately 20 minutes. During the meeting, the Barrie Police and Det, Insp. McNeil s did not direct Dr. Smith in in any way as to how to conduct the meeting with X’s mother and did not ask him to solicit any information from her. At the conclusion of the meeting with Barrie police and Det. Insp. McNeil, Dr. Smith went to the house of X’s mother and met with her.

5: Following that meeting, Dr. Smith met with representatives of the Barrie Police Service and Det, Insp. McNeil over lunch to discuss his meeting with X's mother. Dr. Smith explained that she had a number of questions about his findings and that he answered her questions arising from his report on post-mortem examination.

6: The Barrie Police officers recall that Dr. Smith expressed a view on X's mother's demeanour when she was discussing her child's death. Dr. Smith said, "It was like talking to a load of gravel." The officers understood this to mean that Dr. Smith was commenting on the inappropriate and flat affect of X's mother during that meeting. The Barrie police do not recall that Dr. Smith expressed a position during the lunch meetings to whether or not his pathology evidence supported X's mother's culpability or not.

7: I recall that there were two case conferences involving Dr. Cairns and Dr. Smith, which were held on April 17, 1996, and May 30, 1996. However at these meetings there was no discussion of any surveillance of X's mother.

8: I do not recall any further meetings with Dr. Smith following his meeting with X's mother.

9: The Barrie police have complied with S. 196 of the Criminal Code and have provided X's mother with written notification of the authorization of the interception."

A few comments:

Doctor Smith acknowledged in cross-examination that his interview with the mother in these circumstances was inappropriate but told the Inquiry that he had been asked to attend the meeting by Deputy Chief Coroner Dr. James Cairns;

In fairness to Dr. Cairns, by now we are well aware that just because Dr. Smith said this under oath does not mean that this is true. (We don't have Dr. Cairns side of the story);

However it is worth pointing out that this may not be an isolated incident in Ontario.

An earlier posting in the context of "Tiffani's case" contained a note written by a prosecutor which read: "Our file contains... a lot of information involving the initial coroner's investigation, including videotaped statements from both accused taken by the Regional Coroner Dr. (Benoit) Bechard and the police without caution, warning, or right to counsel."

Next Posting: Part Three; Closing Submissions; Children's Aid Society Investigations Into Infant Deaths and Miscarriages Of Justice;


Friday, March 28, 2008

Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice;



Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention;

It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada);

Fraser's memorable cross-examination of Dr. Charles Smith is discussed is a previous posting called: "Lawyer Suzan Fraser's brilliant cross-examination of Dr. Charles Smith: A powerful voice on behalf of children" which was posted on Feb. 2, 2008;

She focused on the tragic disruption caused within families when siblings were seized by child protection authorities after a parent was wrongly charged with killing a child because of the flawed opinion of Dr. Charles Randal Smith;

Fraser's powerful voice on behalf of children is heard once again in closing submissions that suggest the children and their families were betrayed by a Coroner's office which failed to rein Dr. Smith in;

Fraser wants Commissioner Stephen Goudge to find that the institution of the Office of the Chief Coroner was, "an insular and unaccountable organization and the individuals in charge of pediatric death investigations failed personally to prevent miscarriages of justice and a crisis in pediatric forensic pathology."

And that's just for a start;

Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge."

"An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says."

Fraser argues that the only way Justice Goudge can understand how the Chief Coroner's Office became "so insular" is to identify "the contributions of individuals as well as systemic and structural factors."

More specifically, she contends that, "confronting the flawed organizational culture within the Chief Coroner's Office requires that the Commission make findings in respect of the role of Dr. (James) Young (former Chief Coroner of Ontario), Dr. (James) Cairns, former Deputy Chief Coroner) and Dr. Smith."

"We believe that addressing their contributions to the failure is the first step in restoring accountability and openness to the coroner’s office and pediatric forensic pathology in Ontario," she says. "This in turn will help to restore confidence in the coroner’s office and pediatric forensic pathology in Ontario."

Here is a portion of the section in which Fraser lays out the alleged failure of Young, Cairns and Smith for Commissioner Goudge:

"DCI submits the Commission should find that Dr. James Young, Dr. Jim Cairns and Dr. Charles Smith contributed to the crisis in pediatric forensic pathology by virtue of the culture of their leadership," the section begins;.

"Each was committed to either a personal interest or ideology," it continues.

"For Dr. Young, it was the protection of his office.

For Dr. Cairns, it was the pursuit of an improved death investigation for children based on his vision of what was right.

For Dr. Smith, it was to carve out a niche as the leading pediatric forensic pathologist and protect his position within the Hospital for Sick Children.

Each needed each other to fulfill their pursuits.

The product was an organizational culture that was so insular, so immune to criticism and so lacking in accountability that someone who was dogmatic, arrogant and ignorant could thrive.

Dr. Smith has admitted that he was all those things and more.

All things that speak to both his competency and his ethics:
he was an advocate;
he was an advocate for the Crown;
he gave confusing testimony;
he went beyond his expertise;
he saw himself as a member of the prosecution team; and
he was profoundly ignorant.

Their shared vision, exposing child abuse by death investigation, was championed by the media and fuelled a moral panic that parents were getting away with murder.

The panic appears to have reached its zenith in the Spring and Summer of 1997, which saw:

0: the Ontario Child Mortality Task Force released its interim report in March, 1997 and Final report in July, 1997;

0:The Toronto Star ran its “Cry for the Children” series in March, April and May, 1997;

0: the inquests into the deaths of Shanay Johnson and Kasandra;

0: The Toronto Star call for inquests to be mandatory for children who die while under the supervision of the CAS;

0: And Jordan Heikamp dies of starvation on June 23, 1997 at the age of 5 weeks.

The climate was ripe for absolute trust to be placed in the death investigation system.

During this wave of moral panic and absolute trust, investigations were being conducted into the deaths of Joshua, Jenna, Sharon, Nicholas and Jordan, a preliminary inquiry was conducted into the death of Taylor and inquests were conducted into the death of Kasandra and Shanay Johnson who died as a result of violence by her caregiver.

In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished.

It is important to recognize that the impact of this institutional culture is far-reaching.

First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood.

Second, surviving siblings and future born children were also affected.

The overview reports provide some detail to their experiences.

A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions.

It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption.

Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court.

Third, the findings in these cases appear to have influenced the academic literature.

Dr. Pollanen’s article “Fatal Child Abuse Maltreatment Syndrome” appears to draw its conclusions from many of the cases here.

Finally, Dr. Smith’s inquest work led to 73 recommendations in the Kasandra inquest7 which formed a platform for the reform of the Child and Family Service Act in May, 19998.

Dr. Cairns and Dr. Young introduced Dr. Smith as the leading authority in either the country or the continent.

The only pediatric forensic pathology training in which Dr. Smith participated was training given by himself.

He was invited by (The Chief Coroner's Office) throughout the 1980’s and 1990’s to deliver training and the Coroner’s office encouraged him to develop expertise in pediatric forensic pathology.

It was advantageous for (the Office of the Chief Coroner of Ontario) to have someone with expertise in Child Abuse and Neglect. They needed Dr. Smith and Dr. Smith needed them.

Next Posting:

Part Two: Closing Submissions; End secret surveillance of parents while being informed of the circumstances of their child's death; Important recommendation from Defence For Children International Canada;


Thursday, March 27, 2008

Part Four; Extraordinary Development: Three Inquiries In To Work Of Pathologists At One Time In One Country; The New Brunswick Connection;




While considerable attention is being focused on Dr. Charles Smith today because the Goudge Inquiry has posted written submissions from the various lawyers involved, there is a development in New Brunswick.

This Blog has previously reported that the New Brunswick government has appointed Paul Creaghan - a former Conservative health minister and a retired judge - to conduct a public Inquiry into the allegedly botched work of a pathologist named Dr. Rajgopal Menon.

(Other public Inquiries in to the work of Pathologists in Canada are currently under way in Ontario and Newfoundland;)

Today the Canadian Broadcasting Corporation (CBC) released an independent review of Menon's work as former chief pathologist for the Miramichi Regional Health Authority which it obtained through a successful application to overturn a publication ban.

"A former New Brunswick pathologist misdiagnosed cancer tests in half the cases reviewed last year by outside doctors, and continued to work even though he had cataracts in both eyes," the CBC story begins under the heading "N.B. pathologist had shaky hands, cataracts: report;"

"The report by two Maritime pathologists was released on Thursday" the story continues;

"It found that Dr. Rajgopal Menon, the former chief pathologist for the Miramichi Regional Health Authority, made "major diagnostic" mistakes in six of 12 "problem" cases he handled between 1999 and 2006.

"These included diagnoses of malignant cases as benign," the 21-page report says, including a case in which Menon failed to recognize a case of metastatic breast cancer.

"It is the reviewers' opinion that Dr. Rajgopal Menon fails to meet the current standards of surgical pathology," the report says.

The review of Menon's work was done last spring by Dr. Bruce Wright, a pathologist at the South Shore Regional Hospital in Bridgewater, N.S., and Dr. Rosemary Henderson, a pathologist at the Queen Elizabeth Hospital in Charlottetown, P.E.I.

Their report also says tremors in Menon's hands threw into question his ability to prepare tissue samples for diagnosis and that he continued to work while requiring surgery on both eyes to remove cataracts.

"Prior to his cataract surgery late in 2006, the technologists observed that his vision seemed to be failing, such that he needed request forms to be held closer and closer to his eyes and he needed to get closer and closer to specimens as he was working with them."

Wright and Henderson submitted their findings to the New Brunswick College of Physicians and Surgeons last year and Menon's medical licence was subsequently suspended. He can no longer practice medicine in New Brunswick.

The report has been made public now because the CBC and other media outlets went to court to have a publication ban overturned.

In February, Court of Queen's Bench Justice William Grant in Saint John lifted the ban but allowed 30 days for appeals.

Menon's work was called into question in 2007 after complaints about incomplete diagnoses and delayed lab results.

Health officials are now reviewing more than 20,000 tests he handled over the course of a decade.

In their report, Wright and Henderson made three recommendations:

The New Brunswick College of Physicians and Surgeons require a health assessment with respect to Menon's ability to conduct the practice of pathology.

If the results of that assessment find him fit to continue practising, that he be required to complete remedial surgical pathology training.

Should Menon resume practising, that he be required to take part in quality assurance activities and be regularly monitored.

The reviewers also said the College should determine whether Menon was either legally or ethically required to disclose his visual problems to the hospital.

Wright and Henderson examined Menon's surgical slides and reports to determine accuracy of the diagnoses, the completeness and accuracy of the reports, and how long the work took.

They did not interview Menon.

Of 10 cases referred by Menon to an outside pathologist for consultation, the report found that only two were considered "to have been handled in an acceptable fashion with no significant concerns."

Delayed referring cases outside:

The report also shows that Menon took an average of 34 working days to send five cases out for referral, while the other pathologist at the same hospital referred all his cases out on the same day.

"The reviewers were told at length that Dr. Menon needs to be reminded repeatedly to carry through with expressed intentions to refer cases, perform additional levels or special stains and generally attend to outstanding cases," the report states.

"In August 1998, a list of outstanding cases from 1997 was generated that showed a previous pathologist to have three outstanding cases … and Dr. Menon to have 32 outstanding cases."

Staff formally notified senior hospital officials of these issues as early as 1995, the report shows.

Last month, the New Brunswick government announced Paul Creaghan, a former Conservative health minister and a retired judge, would lead a public inquiry into the Menon case.

Health Minister Mike Murphy has asked the Royal Canadian Mounted Police (RCMP) to review several misdiagnoses by Menon;

Reporter Bobbi-Jean MacKinnon notes in a story that ran today in the Telegraph-Journal out of Saint John New Brunswick that:

"A review of nine cases referred out by Menon were delayed almost seven weeks in cases where the delays could have affected treatment and prognosis.

In similar cases, the hospital's chief pathologist was able to refer cases within a day. And Menon's average turnaround time for cases approached 11 days - twice that for the chief."

MacKinnon also notes that:

"The review found he had to be reminded repeatedly "to carry through with expressed intentions to refer cases, perform additional levels or special stains and generally attend to outstanding cases."

It often takes two to three calls or visits before the matter is dealt with, staff told the experts behind the review. One surgeon interviewed, however, said Menon usually responded to queries about outstanding cases within a day."

"Slides he handled went missing," MacKinnon continues. "Nearly 550 Pap smear slides handled by Menon between 2000 and 2004 disappeared.

At one point, he was asked whether he had removed the slides to use them for his own venture - he was working on an automated slide scanner he touted as a way to eliminate human error.

Most of the slides were later recovered or found."

(Dr. Charles Smith was also criticized for significant delay, failure to refer cases to specialists, and loss of forensic materials);

This Bloggist is particularly fascinated by the fact that the Health Minister has asked the Royal Canadian Mounted Police to investigate Menon with respect to "several misdiagnoses".

This Bloggist would appreciate help in understanding the following conundrum:

Dr. Charles Smith attained the lofty status of head of the Ontario Pediatric Forensic pathology Unit (along with his lofty reputation)

Dr. Rajgopal Menon rose to the level of Chief Pathologist of the Miramichi Regional Health Authority;

However, the work of both of these once eminent pathologists was found to be seriously flawed - causing harm to numerous individuals - when it was exposed to independent scrutiny;

Are these two entirely unique situations?

Or are they merely a reflection of an overall flaw in Canada's health system which allows incompetent physicians - in other areas of medicine as well - to rise, without being challenged by their peers, to positions of prestige and power?


Wednesday April 9; Part Two: It's All About Trust;

It's all about trust:

While patients trusted their health system - officials protected tax-payers and reputations.

They statyed quiet because they didn't want to be sued.

That evidence came from the Newfoundland Inquiry Wednesday from 000 the official incharge -----------

It came along with an apology - which has been becoming more and more common since the Smith Inquiry began;

Into the CP story;

Board knew of cancer problems in 2005, inquiry hears
Updated Wed. Mar. 26 2008 8:15 PM ET

The Canadian Press

ST. JOHN'S, N.L. -- Newfoundland's largest health board was discouraged from telling patients about problems with breast cancer tests to minimize the threat of litigation, despite a plea from the province's health minister months earlier to warn the public of the emerging debacle, a public inquiry heard Wednesday.

A series of notes, e-mails and meeting minutes were entered as evidence that provide a glimpse into how the Eastern Health authority learned of the errors, what it did to inform the public and its failed attempts at damage control.

In an e-mail dated Oct. 18, 2005, St. John's lawyer Daniel Boone advised the board against sending patients a letter informing them that their breast cancer tests were being reviewed at Mount Sinai Hospital in Toronto.

"There is a possibility that we could be sued in a class action by those people who receive this proposed correspondence whose test results do not change. Otherwise these people would not have a cause of action, so sending the letter actually exposes us to a liability which does not now exist,'' Boone wrote to Heather Predham, Eastern Health's risk management consultant.

"I do not see how the letter advances the health care of the affected patients and it increases our exposure to claims for damages. I would recommend against sending it.''

Instead, Eastern Health phoned patients to tell them their breast cancer tissue samples were being retested "to allow for dialogue and to ensure understanding,'' according to minutes of a board meeting a week later.

But that account contrasts with testimony from patients and relatives of deceased patients who have told the inquiry that Eastern Health wasn't keeping them in the loop about the test results.

The inquiry is focusing on Eastern Health's handling of hormone receptor tests, which are a valuable tool that doctors use in determining the course of treatment for breast cancer patients.

If patients are found to be estrogen- and/or progesterone-positive, they may respond to hormone therapy such as Tamoxifen. If not, they may be given other treatment, such as chemotherapy.

Another e-mail entered as evidence Wednesday indicates that three months before Boone's letter was written, Eastern Health was under pressure to tell the public of growing concerns with the quality of its breast cancer testing.

"We potentially have a major clinical issue on our hands, which pertains to the accuracy of laboratory testing for women who have been diagnosed with breast cancer,'' George Tilley, then Eastern Health's CEO, wrote in the July 20, 2005 note.

Tilley said John Ottenheimer, the provincial health minister at the time, was urging Eastern Health to go public about the errors.

"Very sorry to hear of the situation,'' Joan Dawe, chairwoman of Eastern Health's board of trustees, wrote in a response to Tilley, dated that same day.

"I agree with making this public asap when you have the details. Let's plan for briefing the board via conference call before this info becomes public.''

But the issue wasn't made public until an independent weekly newspaper in St. John's published a story on Oct. 2, 2005.

And the full scope of the errors wasn't understood until May 2007, after court documents were filed showing more than 300 patients were affected by botched tests.

More than 200 people have since become part of a class-action lawsuit against Eastern Health.

The inquiry, launched last year, is examining how 383 patients were given inaccurate results on their breast cancer tests, and whether Eastern Health responded to them and the public in an appropriate and timely manner.

Earlier Wednesday, Dawe apologized to patients who may have missed proper treatment because of the inaccurate tests.

"I'm very sorry for the pain and anxiety that patients and their families have endured,'' Dawe said in an opening statement. "For this, Eastern Health apologizes.''

Dawe said she remains confident that medical officials with Eastern Health carried out their duties to the best of their abilities.

"Their motivation was first and foremost to provide the very best patient care,'' she said. "That remains Eastern Health's objective today.''

Dawe will continue her testimony Thursday, to be followed by Ottenheimer.

Into: Parallels with Smith?

May not have been about disease;

Disclosure would have put other cases in jeapardy - and look badly on the people who were supposed to supervise him for the public..

More specifically - pocket of secrecy -when hospital decided Smith's performance onhospital analysis of tissues fo living patients was so bad - they wanted him retrained and demoted -

And someone was harmed - cplostomy girl -

No evidence it was even referred to thec College;

Refer to the postings;

Email to top;

Parallel to Smith secrecy to top;



Wednesday, March 26, 2008

Part Three: Extraordinary Development: It's All About Trust;



It's all about trust - whether one is talking about a forensic pathologist who testifies in court or about the unseen pathologists who quietly work away in their labs processing the breast cancer tests.

Why, for example, would any Canadian involved in the administration of criminal justice distrust a pathologist Dr. Charles Randal Smith - or, for that matter, any other forensic pathologist testifying on the government's behalf?

Dr. Smith was being offered by the Crown as a dispassionate man of science who is dedicated to making his training, expertise and integrity available in a neutral, objective and dispassionate way to the jurors.

That's what the Canadian public expects of the Crown's forensic pathologist experts in criminal cases.

Nothing less;

And why would any Canadian woman undergoing a routine breast cancer test question the ability of the pathologists to correctly read the results?

Canadians have grown up to expect the trained individuals who conduct these tests to be well-trained, well-supervised, well-resourced and subject to quality controls - and that our government will level with us when things go wrong.

Rosalind Jardine, had no reason to question her province's breast cancer testing system before it failed her.

Like so many other Newfoundland women she once trusted the system

Jardine, who was diagnosed with breast cancer in 1999, told the Newfoundland Inquiry into cases involving erroneous pathological results that and her doctor cried when they learned the tests were inaccurate.

As the Canadian Press reported today, (Tuesday, March 25) Jardine told the Inquiry that although she is doing "very well" now, the handling of her case by the Eastern Health Authority has shaken her faith in the system."

"I feel they have not handled it well, in fact, very poorly," Ms. Jardine, 60, testified.

"I'm very sad how this happened, how it's playing out. I've lost trust, I second guess everything.""

The Canadian Press also reported that Jardine had received a lumpectomy, chemotherapy and radiation treatment - and that her initial tests ruled out the hormone therapy drug Tamoxifen.

"In 2005, she was admitted to emergency and had surgery of the bowel, where the cancer had spread," the article says.

"Ms. Jardine said that at around the same time, retesting of her tumour tissue samples at Mount Sinai Hospital in Toronto showed her original hormone receptor tests were wrong.

She said her oncologist, Kara Laing, apologized to her.

"I cried, she cried," Ms. Jardine told the inquiry, now in its second week.

By that time the cancer was in her bones and she was placed on other drugs because she was no longer eligible to take Tamoxifen.

The inquiry is examining why hundreds of patients received inaccurate results from hormone receptor tests used to determine their course of treatment from 1997 to 2005.

If patients are found to be estrogen- and/or progesterone-positive, they may respond to hormone therapy such as Tamoxifen. If not, they may be given other treatment, such as chemotherapy."

In recent postings this Blog has questioned whether the three on-going public inquiries looking into the botched work of pathologists constitute a mere crisis in pathology - or a crisis in Canada's overall health care system.

But Jardine is telling us through her evidence at the inquiry, that one thing all three inquiries have in common is a massive betrayal of public trust.

Canadians are waking up to the reality that they have been poorly served by the officials that were supposed to be protecting them.


Tuesday, March 25, 2008

Part Two: The Henry Keogh Case: Why Is This man still in jail?

The recent posting on the Australian Henry Keogh case has resulted in some intense reaction from readers of this Blog.

(See recent posting: "The Henry Keogh case: A disturbing research paper from Australia: Why is this man still in jail?")

As with many other miscarriages of justice, this type of reaction is often divided between those people who are truly troubled by the case - and those who are convinced that the accused is guilty, unwilling to look at new evidence, and want to throw away the key.

I have also detected an attitude on the part of some readers to the effect of, "stay out of this...this is our business" - which ignores the fact that miscarriages of justice do not have borders and should be of concern to all of us, no matter where we are located.

It is particularly of concern to this Blog in view of the allegations that have been brought against Dr. Colin Manock in terms of his conduct of the autopsy and his opinion in the case - and the exceptional power that forensic pathologists have when they testify for the prosecution against an unpopular accused.

The thorny nature of the Keogh case is brought out in a review of Dr. Robert Moles book "Losing Their Grip - the case of Henry Keogh (Elvis Press)" by Criminal Law Professor Rosalind Gibson for the "Justice on line Seminar" at Charles Sturt University.

"Relying upon repetitive statements made to the police, this book does not claim to be a literary masterpiece," the review begins.

"Nevertheless, it is gripping from the first paragraph which makes the remainder of the book compellable reading," it continues.

The author systematically presents the facts of the case, setting the scenario for an alleged murder.

The book is essentially a critique of the investigation, trials and conviction of Henry Keogh for the murder of his fiancé.

It begins with all the elements of an Agatha Christie plot which is made all the more chilling by the knowledge that the book refers to real people and real tragedy.

The characters are captivating.

The accused was a divorced man who had been sufficiently charismatic to be able to win the love of a young and attractive lawyer.

Adding considerably to the intrigue and appearing initially to complicate the plot, were the accused’s ex-wife, his former lover and another lover who claimed she was still in a relationship with the accused at the time of his fiancee’s death.

As the different characters involved in the investigation emerge, the reader feels a growing concern regarding the lack of qualifications and experience of the person who conducted the autopsy and acted as forensic pathologist in the case.

Added to this is a creeping concern regarding the DPP prosecutor, so by the end of Chapter Two the reader is left with a deep sense of foreboding that a grave injustice is about to unfold.

This feeling is mingled however with a grave reservation regarding the deceptive behaviour of the accused in relation to his unfaithfulness in relationships.

One can imagine that this evidence would have a negative impact on some jurors but of course it must be acknowledged that unfaithfulness does not necessarily indicate a propensity to murder.

Nevertheless, a negative imprint is made at some cerebral level and is not easily overturned especially when evidence of life insurance policies to which the accused is a beneficiary, becomes an issue in the case.

Despite the fact that the initial police statements indicated that there was no suspicion of murder, the case against Henry Keogh slowly and insidiously grew as each piece of circumstantial evidence was accumulated.

If the reader allows themselves to think like a juror (and not like a lawyer) as the prosecution case is presented, it results in an ominous weight of negativity being built up against the accused.

Once this negative impression is formed it is difficult to shift but as the reader progresses, it becomes obvious that the author is clearly of the view that a terrible injustice has occurred in this case and that Henry Keogh was wrongfully convicted of murdering the woman he was planning to marry.

The jurors of course did not have the benefit of the analysis presented by Dr Moles.

What follows from this point is a solid presentation of evidence and expert opinions that leave the reader in no doubt that the autopsy was conducted in an inadequate manner.

It also raises serious questions about the objectivity of the DPP involved in the case.

I suspect that for many readers some level of suspicion regarding Henry Keogh may still lurk in their minds despite their recognition of these obvious deficiencies in the system.

However, the final section of the book which sets out ‘Principles and Cases’ does tend to consolidate the thought that justice in this case has not prevailed.

Dr Moles simply sets out a clear set of legal principles, some of which are Australian and therefore legally binding in this country.

When the reader applies these principles to what they have just read, it should leave them in no doubt that a serious injustice has occurred which should be rectified as soon as possible.

I recommend this book to anyone who has an interest in criminal law, criminal proceedings, and justice, in the hope that they will add to the groundswell of voices of people actively campaigning for justice for Henry Keogh."

In this Bloggist's experience, there are some cases that will never go away because they are hollow to the core.

I suspect the Henry Keogh case is one of them,


Monday, March 24, 2008

Part Two: Extraordinary Development: The Three Inquiries: How Far Does The Crisis Extend?

I recently suggested that the three separate public inquiries involving the work of pathologists which are currently under way in Canada reveal a crisis in Canadian pathology.

(See previous posting: "An extraordinary development in Canada: Three inquiries based on flawed pathology in one country at the same time; Crisis?" Tuesday, March 18);

The Gazette - a Montreal newspaper - goes even further;

The Gazette suggests that the crisis may extend to Canada's overall health care system in an editorial published on Monday March 24, under the heading "How good are our medical laboratories?"

"What a dreadful tale of incompetence and dismal medical practices is emerging from the Newfoundland inquiry on botched breast-cancer tests," the editorial begins;

"Perhaps most appalling is how long the debacle lasted -- from 1997 to 2005. Testimony from victims is now pouring out, and it makes for painful reading," it continues.

"It took Newfoundland and Labrador's health department far too long to advise the victims about the mistakes.

Beyond sadness and anger for the women involved, Canadians should all also be feeling alarm.

Are comparable laboratories elsewhere in the country more reliable?

In these days of long waits and an overburdened medical system, can we be sure there are not more such problems waiting to be discovered?

We think we can be confident in other labs, and we hope so.

But there is no acceptable threshold for system-wide ineptitude.

Over eight long years, hundreds of Newfoundland women were given wrong diagnoses from a lab in St. John's after breast-cancer screening tests.

That lab conducted the province's high-priority breast-cancer tests, the most urgent ones.

After problems were discovered with the lab's methodology, tissue samples were sent for retesting to Toronto's Mount Sinai Hospital, which unmasked the errors.

Since 2005, at least 108 of these women have died, although it's not known yet if their deaths can be surely linked to the botched tests.

What makes this so horrifying is that the tests largely determined what treatment the patients got.

One result would mean chemotherapy; another would steer the patient to hormone therapy. Many, given the wrong diagnoses, ended up taking the wrong treatment.

Beverly Green, 45, was told she was not a good candidate for Tamoxifen, so she did what anyone would have done under the circumstances; she underwent the ordeal of radiation chemotherapy.

Imagine being told after all that pain and emotional anguish that the diagnosis had been wrong and the pills would have been better treatment.

Also looming over the proceedings is the possibility of falsified evidence.

Several women insist that entries made in their medical files by doctors saying that they had been notified of wrong diagnoses or that they had refused a certain treatment, are wrong.

The conversations never happened, the women say.

That will demand its own investigation, which could lead to criminal charges.

Mistakes happen, but an eight-year mistake reveals serious flaws in the monitoring or accreditation process.

Confidence in the Canadian health system and related services has been shaken repeatedly in recent years by alarming errors - the blood supply crisis, the shocking record of Ontario coroner Charles Smith, this affair in Newfoundland, and more.

It would be soothing to believe that these have all been isolated incidents.

But it's hard to avoid the interpretation that they are all symptoms of a truly troubled public health system."


Part One: The Henry Keogh Case: A Disturbing Research Paper From Australia. Why Is This Man Still In Jail?

One of the most disturbing documents to be filed at the Goudge Inquiry is a research paper by Dr. Robert Moles and Ms. Bibi Sangha which raises many important points about forensic pathology in the context of work performed by Dr. Colin Manock.

One important aspect of the paper deals with Dr. Manock's findings that three baby deaths in 1992 and 1993 in Adelaide were the result of natural causes when a subsequent review found significant evidence to indicate that the deaths were non-accidental.

The paper, entitled, "Comparative Experience with Pediatric Pathology and Miscarriages of Justice in Australia" determines how faulty forensic pediatric pathology can contribute to false negatives such as false findings of natural death, as well as false positive findings of non-accidental death.

The co-authors also focus on Manock's involvement in the case of Henry Keogh which is the subject of this posting.

My personal feeling is that if the Keogh case had happened in Ontario, there is no doubt that it would have been the subject of an independent review and under consideration by the Goudge Inquiry - like so many of the cases involving Dr. Charles Smith.

(I also suspect that Ontario prosecutors would have consented to his release pending his appeal- rather than allow him to languish another day behind bars);

I am personally horrified that Mr. Keogh has had so many doors shut in his face in Australia, where is currently serving a minimum twenty-five year murder sentence;

We learn that Mr. Keogh has over the years appealed his conviction to the South Australian Court of Criminal Appeal and to the High Court of Australia - and all his appeals have been unsuccessful.

Moreover, Mr. Keogh has petitioned the Governor three times. (On each occasion his application has been rejected).

His only hope at the moment is that now admitted instances of non-disclosure by Dr.
Manock and a colleague of significant evidence at the trial (as discussed below) will persuade the High Court that his conviction is a miscarriage of justice.

Here is a brief introduction to the Keough case as reported on Wikipedia: (I will follow it with a portion of Moles and Sangha's research paper);

"Henry Keogh is an Australian murderer," the Wikipedia excerpt begins.

"He grew up in Adelaide, South Australia and was educated at Saint Ignatius College, South Australia and briefly in the School of Dentistry at The University of Adelaide," the excerpt continues.

"In 1995, he was sentenced to 26 years in prison for the 1994 murder of his 29-year-old fiancée, Anna-Jane Cheney, then head of Professional Conduct at the Law Society in Adelaide, South Australia: it was alleged that Keogh had planned the murder for over two years.

Mr Keogh and his family have always claimed his innocence, and raised doubts regarding the evidence upon which the conviction was based.

In a petition lodged in 2002, Keogh's legal team provided material in support of a substantial number of complaints.

Keogh's key complaint was against then chief forensic pathologist Colin Manock's handling of the autopsy on Cheney and his evidence in the trial.

South Australian Deputy Premier, Kevin Foley, said that after considering the report of the Solicitor General, delivered after an exhaustive examination over two and a half years of the 37 complaints contained in Mr Keogh’s third petition, he formed the opinion that it did not disclose any arguable basis on which the Supreme Court could find that there had been a miscarriage of justice.

In May 2007, Mr Keogh applied for leave to appeal to the Supreme Court of South Australia.

The appeal was dismissed on 22 June 2007.

On 16 November 2007, the High Court of Australia rejected Keogh's application for special leave to appeal against a decision by the South Australian Court of Criminal Appeal that it did not have jurisdiction to reopen his appeal."

The research paper sets out the following background for the 1994 Keogh case;

Anna Jane Cheney was found dead in the bath at her home on the night of 18 March
1994. She was found by her fiancé Henry Keogh.

The police at the scene decided that there was nothing suspicious about the death.

On Sunday 20 March 1994, Dr. Manock conducted the post-mortem examination for the Coroner.

The Coroner had at that time received the report of Dr. Thomas (dated 11 February 1994) critical of Dr. Manock’s autopsies in the baby deaths cases, but the inquest hearings had yet to commence.

Also, Dr. Tilstone had requested Dr. Oettle to review procedures and practices relating to pediatric autopsies between the years 1989 and 1993 in the forensic pathology section of the State Forensic Science Centre.

In the Cheney autopsy, Dr. Manock determined the cause of death to be freshwater
drowning and decided that the drowning may have been deliberate.

He told the committal proceedings that he “was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown.”

81 Dr. Manock revisited the body the following day (Monday 21 March) and noticed what he described as some faint bruising on the lower left leg of the deceased.

He was the only pathologist to examine the body of the deceased.

His work was not checked at the time by anyone.

The body was cremated on or about 30 March 1994.

Keogh was charged with the murder and tried twice (the first jury failing to agree on a verdict) in 1995.

Both trials occurred during the period of the hearings in the baby deaths inquest.

He was convicted of murder on 23 August 1995 and sentenced to a minimum of
25 years imprisonment.

Two days later, the Coroner’s report on the baby deaths was released.

Here is the research paper's analysis of the role played by Dr. Manock in the Keogh case:

In November 2004 Dr. Manock’s opinion as to the cause of death was brought into
question before the Medical Board of South Australia, following upon a Complaint by

At the Medical Board hearing, Mr. Borick, QC, asked Dr. Manock: “Do you agree with what I put to you, that it is the view of all of your professional colleagues over three decades that drowning is a diagnosis of exclusion? Do you agree with that proposition?”

Dr. Manock replied, “No, I don’t.”

He was then shown a list of major text books on pathology, published between 1955 and
2004, which described it as such.

Mr. Borick asked, “It covers the field doesn’t it?”

Dr Manock: Yes, some of which I’ve made contribution to, as well.

Mr Borick: Which ones?

Dr Manock: Polson and Gee, their second edition; and I see that you don’t have Polson
and Tattersall’s Toxicology, where I also made a contribution.

Mr Borick: In what year?

Dr Manock: That would have been in the mid-60s. [Dr. Manock completed his medical
degree in 1962]

Mr Borick: Anything since then?

Dr Manock: No.

The following quotation from one of the texts was then put to Dr. Manock:

A diagnosis of drowning cannot be made without a complete autopsy and full toxicological screening, histologic analysis of all organs including the lungs and the diatom test.

The diagnosis of drowning cannot be based solely on the circumstances of the death, non-specific anatomic findings and the results of the biological analysis.

He was then asked: “Your autopsy did not accord with that basic principle?”

He replied, “No, it didn’t.”

At the second trial, Dr. Manock told the jury that the basis for his conclusion as to the cause of death was his observation of red haemolytic staining of the lining of the aorta with no such staining of the pulmonary artery.

He said that these observations were “a classical sign of fresh water drowning.”

At the Medical Board hearing in 2004, Dr. Manock said that his opinion was based on principles derived “from his experience,” which had not been published.

He said that at the time he gave his evidence to the jury, he knew that there was no reference in the recognized forensic pathology textbooks on the list given to him of books published over the last three decades of this differential staining phenomenon being diagnostic of drowning.

He said that this was because “the rest of the world hadn’t caught up.”

The only way in which such a finding could be conclusive would be for it to have been
validated by proper scientific studies and published in the literature.

Dr. Manock agreed that differential staining is not referred to in the medical literature as a test for drowning.

He had not carried out any properly validated scientific studies to determine how often it occurred in freshwater drowning; or whether it also occurred in non-drowning cases.

Mr Borick: Bearing in mind that the rest of the world differs from you on aortic staining, have you ever written anything on it?

Dr Manock: No, I haven’t.

Mr Borick: Have you ever given the world the advantage of your skill?

Dr Manock: I have drawn people’s attention to it, yes.

Mr Borick: Which people?

Dr Manock: People who have trained in forensic pathology at Divett Place. [The location of the Forensic Science Centre and mortuary in Adelaide]

Mr Borick: Outside Divett Place, have you ever drawn attention to anybody?

Dr Manock: I can’t recall.

As the Appeal Court judges had said in relation to Dr. Alan Clift in the U.K., if his test had been such a wonderful test, “why didn’t he publish it?”

The accepted scientific view is that there are no signs that are pathognomic of drowning.

It follows that Dr. Manock’s finding about differential staining and drowning would have been the only positive sign which had been found to be specifically diagnostic of drowning.

It would have been an important finding and surely worthy of publication.

He did not at the time of the trial disclose to either the prosecution or the defence the lack of published scientific support for his diagnostic criteria.

There is no photographic record of the observations by Dr. Manock of “differential
staining” at the autopsy.

In fact, there are no autopsy photographs even identifying the deceased.

The only photographs that have been made available from the autopsy are of
the lower legs and of the top of the head with the scalp reflected.

The photographs areblack and white prints, a standard practice at the Adelaide mortuary at the time, according to Dr. Manock and others.

Dr. Manock formulated a scenario as to manner of death.

It was based on the presence of what he said were four bruises on the lower left leg of the deceased, one of them being on the inner or medial side of the left calf, the other three being on the outer side of the leg.

He said that the bruising was consistent with the leg having been gripped from behind by a right hand.

The evidence of this “grip” enabled him to say that the deceased was killed
by someone grabbing her left leg as she lay in the bath, forcing her legs back over her head and causing her head to go under water, thereby drowning her.

The presence of a grip mark on the left leg was to become critical to the prosecution case, with the prosecutor telling the jury it was “the one positive indication of murder.”

Although Dr. Manock demonstrated at the trial how the drowning might have been
carried out using a right-hand grip from behind the left leg, he told the Medical Board hearing that he had always said the marks on the leg resulted from the grip of a left hand.

He further said that the leg had been gripped from above by a left hand, or, alternatively, both hands had been used at different times.

This episode raises issues about the limits of the expertise of a forensic pathologist.

To what extent, for example, should a forensic pathologist express opinions that may now be seen to be part of other specialities, such as anatomical issues and biomechanics.

For example, note the following exchange:

Mr Borick: … I am saying that by definition you’re accepting that Prof Henneberg’s
field—forensic anatomy—is outside your field.

Dr Manock: No, its not.

Mr Borick: Nowhere are you trained in forensic anatomy, are you.

Dr Manock: Yes.

Mr Borick: When.

Dr Manock: Every time we go to a crime scene we have to associate the findings at the
crime scene with the injuries to the body.

Mr Borick: Have you looked at Prof Henneberg’s second affidavit, which details the
training required to be an anatomist.

Dr Manock: What do you think an anatomical pathologist does?

Mr Borick: Dr Manock, your job as a forensic pathologist is to ascertain the cause of

Dr Manock: Yes.

Mr Borick: Right, and on this occasion you did an autopsy and you said cause of death
was drowning.

Dr Manock: Yes.

Mr Borick: That’s all you’re required to do. You didn’t have to go into all the anatomical exercise that you talked about.

That’s not your field of expertise at all.

Dr Manock: Crime scene examination is part of my function, yes.

Another issue that arises here is where inconsistencies emerge between later testimony and earlier reports.

To what extent do the opinions being represented disclose an evolving view to accommodate evidential developments, or merely represent problematic and arbitrary adjustments?

We will consider this further as part of our general

Fundamental to establishing that there was a grip pattern was the mark on the medial side of the left leg.

It was said to represent the position of a thumb.

Dr. Manock told the jury that for histological examination he had taken sections from the bruises on the legs and that his microscopical examination showed that there was blood trapped in the tissue of the medial left leg section, which confirmed that the section was from a bruise.

At the Medical Board hearing, Dr. Manock admitted to the Board that the histology did
not in fact support that the mark on the medial side of the left leg was a bruise and that he knew that from a few days after the autopsy in March 1994.

The effect of this evidence is that there was no histological proof that the mark on the medial side of the left leg was a bruise and, further, there was no basis for what he told the jury as to the age of the bruise.

Dr. Manock told the Medical Board that he did not disclose to the prosecutor the truth concerning the histology of this bruise because it “wasn’t part of the conversation.”

It is also known now that Dr. Manock did not check the full medical history of the
deceased before forming his diagnosis.

If he had done so he would have found that the deceased had had 37 medical consultations with 12 different medical practitioners over the previous five years.

He took only limited tissue samples from the internal organs for histology.

He told the Medical Board that he had no record of the weights of the organs
because his assistant had wiped them off the whiteboard during his absence from the
mortuary to take a phone call.

Here are the references to the role played in the case by Dr. James; (Dr. Manock's colleaugue);

Dr. Ross James, a long-time colleague of Dr. Manock at the SFS, was asked by the DPP before the trials to review the work of Dr. Manock.

Dr. James told the Medical Board that he had supported Dr. Manock in his diagnosis of cause of death, but he had not disclosed at the trial that his opinion as to cause of death was based on his “personal observation” that he had “noticed differential staining in a number of cases.“

Dr. James also told the Medical Board that he did not disclose to the trial court his
opinion that the mark on the medial side of the deceased’s left leg was not a bruise
because he “didn’t think it was particularly relevant.”

91 He in fact told the Board that he thought his opinion differed from that of Dr. Manock.

Apparently there is no record in Dr. Manock’s case file of the result of his histological findings with regard to his analysis of the bruising.

This should be contrasted with what Dr. Oettle stated in his report in
relation to the baby deaths: It is my opinion that body measurements, organ weights and microscopic findings should be included in the final report of every Coronial case, and this is in keeping with the acceptable international protocols.

The judgment included the following observations: (a) In the 1998 edition of Archbold
Criminal Pleading, Evidence and Practice the existing law was summarised as following
(with emphasis supplied): “Duty of Disclosure It is the duty of an expert instructed by the prosecution to act in the cause of justice R v Ward 96 Cr App R1 CA.

It follows that if an expert has carried out a test which casts doubt on his opinion, or if such a test has been carried out in his laboratory and is known to him, he is under a duty to disclose this to the solicitor instructing him who has a duty to disclose it to the defence.

This duty exists irrespective of any request by the defence.

It is not confined to documentation on which the opinion or findings of the expert are based.

It extends to anything which might arguably assist the defence.

It is, therefore, wider in scope than the obligations imposed by the Crown Court (Advance Notice of Expert Evidence) Rules 1987 (SI 1987 No.716).

Moreover, it is a positive duty which in the context of scientific evidence, obliges the prosecution to make full and proper inquiries from forensic scientists to ascertain whether there is discoverable material.”

Dr. James has himself been the subject of a Complaint to the Medical Board with regard to his conduct in the Keogh case.

Dr. James applied to the Supreme Court to stop the hearing, claiming witness immunity and an abuse of process.

The Full Court held that witness immunity had no application to proceedings brought before the applicant’s professional body and that the Medical Board was the appropriate place to determine any issue as to abuse of process.

The High Court refused Dr. James leave to appeal this decision.

95 The Medical Board hearing was eventually held on 16 August 2007 and the
Board has reserved its decision.

The co-authors also reveal the troubling fact that the Coroner released his finding on the baby deaths inquiry two days after the verdict of guilty in the Keogh case.

"According to the affidavit filed by Keogh’s solicitor, the Coroner has said that he was sensitive to the fact that Keogh’s trial was proceeding at the time when he was ready to publish his Finding," the research paper says.

"He has said that he knew that Dr. Manock was a principal Crown witness in the Keogh trial and to avoid a mistrial he had decided of his own volition to delay publishing the Finding on the baby deaths until after the Keogh trial had concluded."

If only Mr. Keogh had had access to this information relating to Dr. Manock's competence during his trial.

One can only hope that the Australian High Court will have the courage to admit that it has been terribly wrong on the Keogh case.

Or, that failing, that the revelations at the Goudge Inquiry about the weaknesses and limits of forensic pathology will convince the Australian government to finally set things straight.

Mr. Keogh is owed nothing less;

(Dr. Moles is currently engaged full time with the "Networked Knowledge project" which he establshed to investigate and report upon alleged serious miscarriages of justice which are said to have taken place in South Australia over the last 30 years. He is the author of "A State of Injustice" which was published in October 2004, and "Losing Their Grip" – The Case of Henry Keogh published January 2006. His extremely comprehensive Web-site can be found at


Sunday, March 23, 2008

The Terribly Unfair Balance Of Power Between Dr. Charles Smith and His Victims;

One of the reasons that Dr. Charles Smith has been able to survive for so many years, in spite of mounting evidence of incompetence - is that he had the assistance of batteries of well-trained lawyers without spending a cent of his own money over the years - other than paying premiums - while his vulnerable victims lacked the financial resources to fight back.

This is evident today from the defence he is able to mount at the Goudge Inquiry where he is represented by three lawyers from the high-power international law firm McCarthy Tetrault, who have thus far looked after his interests for more than sixty days of evidence.

When all is said and done, Dr. Smith will not have to reach into his pocket to pay a cent for this representation which is being provided by the equivalent of a small law firm: All of his legal costs and expenses at the Inquiry will be paid for by the Canadian Medical Protection Association for this representation (The CMPA);

(Please note dear reader that I am not, in any way, begrudging the CMPA for the important support that it provides Doctors. I only wish to explain how Dr.Smith has been able to survive for so long in the face of mounting evidence of his incompetence and the harm he was causing to innocent people);

The CMPA describes itself on itself on its Web-site as "a mutual defence organization" -and "not an insurance company."

"The CMPA's defence philosophy holds professional integrity as first and foremost," the organization explains. "We will vigorously defend a member as long as there is good expert support to do so. CMPA members are eligible for protection independent of their history or track record."

The CMPA also points out that:

"CMPA members are eligible to receive a broad spectrum of assistance related to medico-legal difficulties arising from their professional work in Canada. In addition to advice, support and guidance from experienced medical officers on everyday practice issues, assistance is offered in:

Civil legal actions alleging malpractice or negligence;

Criminal proceedings arising from medical care;

Complaints and disciplinary proceedings related to a licensing body;

Human rights complaints arising from medical care;

Coroners' or other fatality inquiries;

Inquiries about doctors' work or conduct in hospital;

Provincial or territorial billing agency inquiries;

"This broad scope of assistance allows members to mitigate and manage risk which in turn improves the care and services physicians offer their patients," the organization says.

Looking at this list, it is apparent that Dr. Smith has been able to battle the College of Physicians and Surgeons, and mount defences in the growing number of civil cases accumulating against him with the assistance of lawyers appointed by the CMPA to represent him.

Moreover, Dr. Smith will not have to reach into his pocket to provide a cent of any judgment meted against him in the civil courts - or any monetary settlement that the CMPA determines should be accepted.

Nor is it likely that Dr. Smith will ever have to take responsibility for the cost of his defence, because: "There is no limit on the cost of legal help a member is eligible to receive. Individual claims do not increase future fees..."

Now let's take a look at McCarthy Tetrault, Dr. Smith's defenders.

Another word of caution: I am in no way criticising this phenomenal firm or its extremely capable lawyers. (I articled for McCarthy and McCarthy - its predecessor firm - many years ago.)

I am only pointing out the disproportionate resources available between Dr. Smith and his victims, who would probably have gone unassisted if it were not for the existence of highly committed lawyers willing to take legal aid at pitiful amounts per day;

Here is a description of the services that McCarthy Tetrault can provide professionals such as Dr. Smith, as set out in the company's Web-site:

"Allegations of insufficient diligence, breach of professional standards, negligence or worse are escalating in today’s ever more demanding consumer environment.

As a professional, you cannot remain complacent. Your integrity, reputation and livelihood hinge on the swift and effective resolution of any and all allegations against you.

No organization, institution or individual is immune.

Top-ranked architects, dentists, directors and officers of companies, engineers, financial advisers, lawyers, media personnel, physicians, psychologists, real estate agents and other professionals can be the target of such allegations.

Frequently, these allegations entail civil proceedings, securities commission hearings, insolvency-related proceedings, disciplinary charges and criminal allegations. What’s more, the amounts awarded by judgment are on the rise.

When you’re under threat, you need advocates who will protect your reputation and professional integrity to the fullest. McCarthy Tétrault has been at the forefront of professional liability for decades, pleading ground-breaking cases before almost every court and administrative body in Canada.

We’ve been instrumental in evolving case law and the regulatory framework.

Respected professionals choose McCarthy Tétrault because:

We have depth and expertise.

We respond to the most complex allegations and handle multiple proceedings swiftly and competently.

We work seamlessly with our colleagues in related areas such as insurance litigation, labour law, bankruptcy and restructuring, and human rights to address all your issues.

We are fast and efficient.

We focus on providing optimal results through advice, alternative dispute resolution, arbitration, mediation, negotiation or litigation.

We have the premier litigation practice in Canada.

As the nation's pre-eminent litigation firm for over 150 years, we have leading lawyers in every region across the country.

We understand your profession in depth.

We advise the governing bodies of several professions, including our own, on their submissions to legislative bodies regarding proposed changes to the regulatory framework in which they work.

We tailor our approach to your situation.

As professionals ourselves, we understand and address the full impact that confronting legal problems can have on your reputation and your ability to carry on in the public or private sector.

You have a duty of care to seek the best counsel available: McCarthy Tétrault."

Unfortunately, people like Brenda Waudby, William Mullins-Johnson and other victims of Dr. Charles Smith could not turn to McCarthy Tetrault and a bottomless defence pot to retain the expert lawyers and battery of international experts necessary to conduct a forensic defence;

And those families who did not qualify for legal aid faced exhaustion of the funds set aside for their retirements or even bankruptcy.

Lawyer John Struthers did not mince words when asked by Commission Counsel Mark Sandler whether he had any recommendations for Commissioner Goudge:

"Well, with the greatest of respect, it wasn't the Coroner's Office that solved this problem, and it wasn't the Crown Attorney's Office that solved this problem, and it certainly wasn't the police or the Hospital for Sick Children," Struthers told the Inquiry.

"It was a bunch of lawyers being paid the Legal Aid rate to challenge Dr. Smith and basically, to point out to a Court of law, in a manner that they accepted, that he was really off the rails," Struthers continued.

"And if you want -- you know, we live in an adversarial system. The theory is that the Crown doesn't seek convictions; that's not been my experience, but that's theoretically the rule, Bushey.

My position would be that if you want to defend people charged with outrageous allegations that have no foundation in fact, in law, or in science, then the way to do that is to have prepared, competent, skilled, and experienced defence lawyers who are willing to take the case is to challenge this kind of evidence, and you're not going to get it at this current rate of pay.

A lot of people take the position that they graduate out of Legal Aid; they don't take Legal Aid cases anymore because the rate of pay is just completely unacceptable.

And if you want somebody with twenty-two 22) years experience to take homicide cases of great difficulty, complexity, and that require a level of expertise in specific areas that are outside of the legal framework, then you're going to have those people paid properly and right now they're not."

It is clear that even if the growing number of law suits being brought against Dr. Smith result in judgments or settlements he will not have to go into his pocket to pay a single cent.

How's that for accountability?


Saturday, March 22, 2008

Up-Date: Charles Smith Blog Freedom Of Information Application: Dr. James Young;

In an earlier posting, I promised to keep our readers up to date on this Blog's application for documentation relating to former Chief Coroner's testimony to the Goudge Inquiry that he obtained government support for Dr. Charles Smith's private libel law suit against the CBC.

So here is an up-date.

My request has been officially acknowledged by an official of the Ontario Ministry of Community Safety and Correctional Services in a letter dated March 3, 2008.

The letter, from Marlene Gillis, Deputy Coordinator, Freedom of Information and Protection Of Privacy Services informs me that:

"Your faxed request under the Freedom of Information and Protection of Privacy Act (the Act) for access to records in relation to certain testimony provided by former Chief Coroner of Ontario, Dr. James Young, at the Inquiry into Pediatric Forensic Pathology in Ontario was received by this office on March 3, 2008."

The Ministry is required to release the information within a thirty day period - which brings us to February, 3, 2003.

I am hoping that the ministry will be forthcoming without exposing this Blog - and its readers - to unwarranted delay.

For those readers who are not familiar with the original posting which ran under the heading: "Blog applies for information on Ontario Government funding of private law suit brought by Dr. Charles Smith against the CBC," on March 3, 2008;

The earlier posting reads as follows:

The Charles Smith Blog is filing a request today for information relating to the Ontario government's partial funding of a libel suit brought personally by Dr. Charles Smith against the Canadian Broadcasting Corporation in connection with a hard-hitting Fifth Estate documentary;

The application, under Ontario's Freedom of Information legislation, is based on Dr. Young's testimony to the Goudge Inquiry as set out in a previous posting: "Young tells Inquiry he persuaded Ontario government to fund Dr. Charles Smith's libel suit against the CBC: Abuse of Office? December 3, 2007".

Ths Bloggist believes that there should be a public investigation into how public funds came to be used fund a private lawsuit against the CBC - an issue with important constitutional ramifications - but until that happens this application will have to do.

The Blog ran as follows:



I am extremely troubled by former Chief Coroner Dr. James Young's evidence that he persuaded the Ontario government to financially back a private libel suit brought by Dr. Charles Smith against the CBC in connection with a hard-hitting documentary produced by the "Fifth Estate;" (The entire documentary can be found in previous postings: Interrogation of an innocent mother: Parts eleven to fourteen);

The groundbreaking documentary, telecast on Nov. 10. 1999 was highly critical of Dr. Smith's competence and credibility. (See earlier posting: Smith and the media; Part four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears;)

It included interviews with the mother of a deceased child, Deputy Chief Coroner Dr. James Cairns, who was very supportive of Dr. Smith, and several medical experts who were critical of Smith's work in the cases examined by the program,

I am reprinting Dr. Young's testimony to the Inquiry earlier this week in full, so that the readers of this Blog can make their own judgment of the propriety of Dr. Young's actions;.

(Inquiry lawyer): MR. MARK SANDLER: All right. Now, we see, again, skipping ahead in time a little bit, that -- that Dr. Smith has filed a statement of claim against the CBC. And it's dated February of 2000, which would be not that long after the -- the matter was originally televised. And did you become aware of the existence of the statement of claim against The Fifth Estate?

DR. JAMES YOUNG: I became aware that he was going to issue a statement of claim.

MR. MARK SANDLER: And how did you become aware of that?

DR. JAMES YOUNG: I believe he asked me whether or not the Ministry would support -- would help with the legal fees if -- if he proceeded.

MR. MARK SANDLER: And did you get back to him about that?


MR. MARK SANDLER: And what did you tell him?

DR. JAMES YOUNG: I -- I passed on a message from our legal branch, who had discussed it within the Ministry and said they would to a very limited extent, that they would pay a small amount towards the -- the case.

MR. MARK SANDLER: And did you support the -- the determination that at least to some extent he would be financially assisted, if he chose to go that route, by the Ministry?

DR. JAMES YOUNG: I believe I probably did. I remember bringing it forward for consideration, which was first and foremost what I agreed to do. I -- I probably said to a -- some limited extent we should -- we should back him on this.

MR. MARK SANDLER: Well, the question that arises is that to a limited extent you indicated to the Ministry that we should back him on this without having heard the telecast, without have read its contents, and without being in any position to
independently form an opinion as to whether there was any merit at all to his statement of claim?

DR. JAMES YOUNG: No. First of all, I've said I don't know if I said that, whether I backed him. I may have or I may not have, but I think I did -- probably did. The other issues that were going on at the time, within government, were that we were having discussions both with coroners and pathologists about issues around liability, workplace safety, providing lawyers for other hearings, et cetera.
And -- and it was becoming a very difficult matter when -- as -- as the number of things were increasing, they were saying, You know, if we're going to do the work for government, we expect support from government in return. So I remember that being an issue at the time, and I remember supporting it for that reason, that
I felt that it was important that we back the -- the people that are doing the work for us. If we're not prepared to back them, then we're not going to have them working for us. It was that simple."

Here is what troubles this Blogster.

First, the Government of Ontario;

If in fact the Ontario government did secretly throw money into Dr. Smith's private lawsuit - even one cent - there has been an extremely grave violation of the constitutionally protected right of Canadians to Freedom of Expression.

Lawsuits against the media are very dangerous because they can have a chilling effect - and can discourage the media from reporting fearlessly while the matter is awaiting trial.

Any government that secretly uses public dollars to support a private lawsuit - especially one launched in connection with a documentary that was critical of the Chief Coroner's office which is under the aegis of Ministry of the Solicitor General - crosses a very dangerous line.

Dr. Smith kept his lawsuit hanging over the CBC for years before ultimately dropping it) - just as he had sued MacLeans for a brilliant expose on Smith by reporter Jane O'Hara only to drop it before trial; (See previous posting: Smith and the Media: Part Five; Taking on Charles Smith; A second example of fearless journalism);

At the moment, we have no proof that the government did, in fact, help fund the lawsuit - just Dr. Young's testimony under oath at the Inquiry.

But Dr. Young's testimony puts a very strong onus on the McGuinty government to clear the air and tell us whether this happened or not.

If it did occur, questions abound;

Who in the Ministry's legal department approved and facilitated the funding?

What elected officials or civil servants in the Ministry gave their approval?

Have the individuals involved been brought to account?

If not, will they be brought to account?

Has there been a breach of ethical obligations by the politicians and civil servants involved?

Now for Dr. Young.

I am astounded that alarm bells didn't go off in his head when Dr. Smith asked him to persuade the government to help fund his lawsuit against the CBC - that he didn't realize at once that such a course of action could be perceived as an abuse of his office.

In this Blogster's view, Dr. Young's actions were aggravated by the fact that he signed a letter intended for the College of Physicians and Surgeons of Ontario which had been drafted by Dr. Smith's lawyers.

Dr. Young testified that he did not change a single word of this letter in which he defended Dr. Smith on the three complaints that had been filed against him - (and one of these complaints occupied a central role in the CBC documentary that was subject to the libel suit he wanted the Ontario government to help fund).

I, personally, find it very difficult to understand why Dr. Young would have asked the government to help pay for Dr. Smith's lawsuit in light of his sworn evidence that he had not seen the broadcast, he had not read its contents, and he was not in any position to independently ascertain the merit of Dr. Smith's statement of claim.

I will leave it for the readers of this Blog to decide if they accept Dr. Young's explanation that, "If we're (the coroners and pathologists) going to do the work for the government, we expect support from government in return."

I also find it very difficult to understand why Dr. Young just couldn't say "no" to Dr. Smith."

I will keep our readers informed about the progress of this application.


Thursday, March 20, 2008

Part Five: After Goudge: Will There Be Lasting Change? Not Necessarily; Dr. David Southall; The British Experience:




I am very grateful to several readers who drew my attention to Dr. David Southall, an internationally renowned British pediatrician, who, like Dr. Charles Smith, managed to remain in practice for years in spite of efforts to have him booted out of the medical profession.

These readers broached the subject of Dr. Southall in the context of several recent postings in which I explored whether there would be real consequences for Dr. Smith after Commissioner Stephen Goudge files his report;

I am very grateful to Jason Day of the General Medical Council Press Office for providing me with the disciplinary body's recent decision finding Dr. Southall guilty of serious professional misconduct and erasing his name from the medical register;

In addition to providing our readers with this decision - a fascinating document which prompted several comparisons with Dr. Smith in my mind - I am providing a Wikipedia biographical excerpt on Dr. Southall, and the BBC's Internet account of his erasure.

(It should be noted that Dr. Smith received a mere "caution" form the Ontario College of Physicians and Surgeons for his sub-standard work on three cases in which his sub-standard work led to disastrous consequences for those involved. "Cautions" are not even recorded on the College's official Register);

The Wikipedia account answers the question "who is Dr. David Southall?" as follows:

"Professor David Southall is a UK paediatrician who is regarded by some as a leading expert in Fabricated or Induced Illness (FII, also known as "Munchausen Syndrome by Proxy"), and who has performed significant research into sudden infant death syndrome<" the Wikipedia account begins.

"Southall was struck off the medical register on 4 December 2007, after being found guilty of serious professional misconduct by the General Medical Council," it continues.

"In his early career, Southall spent four years in general adult medicine, one year in obstetrics and two years as a general practitioner.

Between 1986 and 1994, Southall led a pilot research project into FII involving video surveillance of young hospital patients in an effort to observe their carers (such as parents or guardians) harming them.

The project, which was conducted at the Royal Brompton Hospital in London, and the North Staffordshire Royal Infirmary in Stoke-on-Trent, observed carers using methods such as suffocation and poisoning to harm the children.

As a result of the project, thirty-three parents or step-parents who had harmed their children were prosecuted, and twenty-three were diagnosed with FII.

The project attracted controversy for its methods and for the ethical implications of the research.

Critics argued that the desire of the researchers to observe the carers harming the children exposed the children to further abuse, that the betrayal of doctor-patient trust necessarily involved in the surveillance could cause harm to the subjects, and that "a diagnosis should lead to treatment, not punishment".

However, the researchers argued that the surveillance saved the lives of many of the children involved, and Southall himself said that "[b]y doing covert video surveillance we are betraying the trust of parents... [b]ut if a parent has been abusing his or her child in this way then the trust between child and parent has already gone."

In the early 1990s, Southall led a study which pioneered continuous negative extrathoracic pressure therapy, a treatment for breathing difficulties in young children involving the application of pressure to the patients' chests.]

The study was controversial, with some parents of the children involved suggesting that the treatment was linked to subsequent death or brain injury.

The research was the subject of investigations by the hospital involved and inquiries from police.

An independent follow-up study concluded in 2006 that there was "no evidence of disadvantage, in terms of long-term disability or psychological outcomes" from the use of the technique.

In 1993, during the Bosnian War, Southall traveled to Sarajevo as a participant in a medical evacuation programme for sick children from the area.

Prompted by his experiences there of what he described as "trauma inflicted on children and their families, not only by warring factions, but also by the indolence of the international community", Southall established Child Advocacy International on his return, to advocate for international child health issues.

In 2004, Southall was found guilty of serious professional misconduct by the General Medical Council (GMC), after alleging to police that the husband of Sally Clark was responsible for murdering the couple's children.

Southall made the claim to child protection officers of the Staffordshire police after watching a television documentary about the case.

The GMC banned Southall from child protection work for three years; the Council for Healthcare Regulatory Excellence challenged the decision as insufficient and argued that he should be deregistered, but a High Court of Justice decision in 2005 held that the sanction was not unduly lenient.

In February 2007, Attorney-General Lord Goldsmith announced that a review would be held into a number of criminal cases in which Southall gave evidence for the prosecution, following allegations that Southall kept up to 4,450 personal case files on children patients which were kept separate from the official hospital records."

The BBC Internet news report, published on Dec. 4, 2007, under the heading "David Southall struck off by GMC," demonstrates the powerful support that Dr. Southall drew from some of his colleagues in the medical profession, in spite of the disturbing nature of the proven allegations;

"Controversial paediatrician Dr David Southall has been found guilty of serious professional misconduct and struck off the medical register," the report began;

"The General Medical Council decided last week that he had abused his position by accusing a mother of drugging and murdering her son," it continued:

The GMC said Dr Southall had a "deep-seated attitudinal problem".

The GMC found that Dr Southall's actions added to the distress of the mother - Mandy Morris, from Shropshire - whose 10-year-old son Lee hanged himself in 1996.

Dr Southall made the claim in an interview with Mrs Morris about the safety of her surviving son.

He had been instructed by Shropshire County Council to provide an independent expert report to the court.

Special files

The GMC also ruled that, in some cases, Dr Southall acted inappropriately in keeping original medical documents on children in his care in his own special case files separately from their official medical records.

Lawyers acting for the Attorney General are now examing thousands of these files amid concerns that they were not revealed during criminal proceedings.

In 2004 Dr Southall was suspended from child protection work over his role in the case of Sally Clark, wrongly jailed over the death of her two sons.

Dr Southall accused Mrs Clark's husband Steve of murdering the two boys on the basis of a television interview.

Dr Jacqueline Mitton, chair of the GMC disciplinary panel, told Dr Southall: "Your multiple failings over an extended period caused the panel great concern.

"Furthermore, the panel is influenced by the fact that although the events in the current case predate those in the Clark case there are now two instances were without justification you have accused a parent of murdering their child.

"In all the circumstances the panel has concluded that you have deep seated attitudinal problems and that your misconduct is so serious that it is fundamentally incompatible with your continuing to be a registered medical practitioner."

In a statement issued after the hearing, Dr Southall admitted he had taken "difficult and sometimes unpopular decisions" in his career.

But he added: "The welfare of the children has always been paramount in my mind."


Dr Paul Davis, a consultant paediatrician in Cardiff, said Dr Southall had been a great pioneer in helping identify mothers who hurt their babies, and, as a result, had become the target of a hate campaign.

He said: "It is a great shame for David Southall personally, and a huge deterrent for paediatricians in Britian to get involved in this kind of work."

The Royal College of Paediatrics and Child Health expressed sadness and disappointment at the ruling.

President Dr Patricia Hamilton said "David Southall has made a major contribution to child health both nationally and internationally and has been a strong advocate for children during a distinguished career."

And Dr Evan Harris, MP called the ruling "disproportionate" and a "serious miscarriage of justice".

But John Batt, lawyer to the Clarks, said: "This has got to be the right decision.

"Paediatricians fulfil an absolutely vital role in child protection, but a minority of them have been making false allegations against innocent mothers for many years.

"It is about time the medical establishment stopped defending these people."

Dr Southall worked as a consultant paediatrician at London's Royal Brompton Hospital from 1982 before moving to the same post at the North Staffordshire Hospital in Stoke-on-Trent in 1992.

The Staffordshire trust said it would now review Dr Southall's position. Trusts are not allowed to employ doctors without the appropriate professional registration.

In a statement it said Dr Southall's competence as a general paediatrician had not given cause for concern.

He has (Filed an appeal aginst the GMC decision."

Here, at last, is the General Medical Council's Fitness to Practise Panel's decision;

"Dr. Southall; The Panel has considered this case in accordance with the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988.

The Panel has heard that from 1982 you were a senior lecturer and subsequently a consultant paediatrician based at the Royal Brompton Hospital, London.

From 1992 you were professor of paediatrics at the University of Keele and also a consultant paediatrician at the North Staffordshire Hospital, Stoke on Trent.

In January 1998 you were contacted by local authority social workers who had concerns about the welfare of Child M2.

You were told that there were similarities between current events in Child M2’s life (including apparent suicide threats) and events in the life of his elder brother, Child M1, who in June 1996, when aged 10, had died by hanging.

You gave the social workers certain advice.

On 29 January 1998 the court made an emergency protection order.

As a consequence Child M2 was removed from his parents’ care.

On 2 February 1998 you wrote what you described as a preliminary report, following which on 3 February 1998 the local authority applied for an Interim Care Order.

On 17 March 1998 you were instructed by the local authority to prepare a report for the care proceedings.

Your report was to cover both Child M2 and his family.

For the purpose of preparing your report you interviewed Mrs M on 27 April 1998.

The Panel has found proved that during the course of this interview you accused Mrs M of drugging Child M1 and then murdering him by hanging.

This was done in an accusatorial and intimidating manner.

The possibility of M1 being the victim of murder had not been raised until you became involved.

At the inquest the coroner had recorded in his verdict that he had considered suicide and accident but in the event he returned an open verdict.

It is apparent that no evidence was presented at the inquest to suggest that murder was a possibility.

Despite the verdict, you formed the belief that the circumstances of M1’s death needed to be investigated by you.

The Panel is extremely concerned by these facts.

You are a registered medical practitioner and in that capacity you were instructed by Shropshire County Council to write an expert report for the court in care proceedings based on the papers that had been provided to you.

The letter of instruction made it clear that it was important that the parties had confidence in your independent status.

Your action in accusing Mrs M of murdering Child M1 was inappropriate, added to her distress as a bereaved person and was, in the circumstances, an abuse of your professional position.

By acting in an accusatorial and intimidating manner you failed to treat Mrs M politely and considerately and did not respect her dignity.

This behaviour was also inappropriate and caused distress to Mrs M.

In some situations doctors have responsibilities not only to patients but also to third parties.

Although Mrs M was not your patient you interviewed her in your capacity as a registered medical practitioner and you had a clear obligation to
treat her as you should treat a patient, that is politely and considerately and respecting her dignity.

The manner in which you conducted the interview, questioned and directly accused Mrs M was incompatible with your position as a doctor.

The Panel regards your behaviour towards Mrs M as a very serious instance of misconduct.

In March 1989 Dr Dinwiddie, a consultant paediatrician at Great Ormond Street Hospital, referred Child H to you for investigation and advice.

In September 1989 and again in March 1990 Child H was admitted to the Royal Brompton Hospital where his breathing was monitored.

In March 1990 you proposed to the parents a home monitoring and care regime.

However, on about 22 March 1990 Child H’s parents informed you that they no longer wanted you to be involved in the management of Child H’s care.

On 22 March 1990 you wrote to Dr Dinwiddie to the effect that the parents were not acting in Child H’s best long term interests, that they liked the idea of him having a rare illness, that you were suspicious of their motives and that you viewed the long term prognosis with great concern.

You copied and sent this letter to an unnamed Consultant Paediatrician at the Royal Gwent Hospital even though no one there was currently involved in Child H’s care or had been involved in the past.

The letter contained sensitive and confidential information.

Your action was inappropriate and in breach of the confidentiality owed by you to Child H and his parent’s.

In the General Medical Council’s Guidance, Professional Conduct and Discipline: Fitness to Practise (March 1989), which was in force at that time, paragraphs 79-82 cover the subject of professional confidence.

It is a doctor’s duty, subject to the exceptions listed in Paragraph 81, to strictly observe the rule of professional secrecy by refraining from disclosing voluntarily to any third party information about a patient which he has learnt directly or indirectly in his professional capacity.

None of the exceptions applied in this case because the letter was sent to an unidentified recipient.

In relation to Child D and Child H, you created, or caused to be created, an “S/C” File for each child wherein certain original medical hospital records relating to the children were then placed by you or on your behalf.

These medical records are not elsewhere in the children’s hospital medical records. The placing of the original medical records in “S/C” Files damaged the integrity of the children’s hospital medical records and caused the items concerned to be inaccessible to others involved in the medical care of the children at that time or in the future.

You have a responsibility and duty as a doctor to ensure that medical records are readily available to colleagues as and when required.

Failure to do so can result in serious consequences.

Your action in this respect was not in the best interests of either Child D or Child H.

It was inappropriate and an abuse of your professional position.

You treated Child H at the Royal Brompton Hospital, and there created an “S/C” file for the child.

The “S/C” file contained original Royal Brompton Hospital medical records relating to Child H.

When you moved to the North Staffordshire Hospital in 1992 you took, or caused to be taken from the Royal Brompton Hospital, the “S/C” File relating to Child H.

Your action was not in the best interests of Child H.

It was inappropriate and an abuse of your professional position.

The damage to the integrity to the child’s hospital medical records was compounded by transferring them to a hospital at which the child was not being and had not been treated.

The Panel takes a serious view of your conduct in relation to the “S/C” files over a considerable period of time.

In 2004 the Professional Conduct Committee (PCC) found you guilty of serious professional misconduct in relation to the ‘Clark case’ and placed a condition on your registration for a period of three years.

The events in that case took place in 2000 and also concerned child protection issues.

The Council for the Regulation of Health Care Professionals appealed the decision of the PCC.

In his judgment given on 14 April 2005 Mr Justice Collins held that that the PCC’s decision to impose conditions was not unduly lenient but that the condition imposed was not sufficient to prevent any involvement by you in child protection work.

Moreover, the PCC should have directed that a resumed hearing take place towards the end of the three year term.

He substituted more tightly drawn conditions for that originally ordered.

A Fitness to Practise Panel reviewed the case on 23 July 2007 and determined that you had complied with the conditions.

It directed that the period of conditional registration should be extended for a further period of twelve months.

The events that gave rise to the Clark case occurred after the matters before this Panel.

These events and the consequent finding of serious professional misconduct have been disregarded by this Panel when considering the question of serious professional misconduct before it.

In February 2007 the Attorney General set in hand a review of cases in which you had acted as a prosecution witness.

This was with particular reference to the S/C Files.

The report is yet to be published.

The Panel has also heard that the South Wales police are investigating the treatment of Mrs H’s son.

The Panel has concluded that any police investigation and the Attorney General’s review are not relevant to its consideration of the question of serious professional misconduct, nor indeed to any sanction.

It has been accepted on your behalf that, in the light of the findings of fact there is evidence before the Panel from which it could conclude that you are guilty of serious professional misconduct.

The Panel has found that your conduct has fallen well below the standard expected of a registered medical practitioner in a number of respects.

It therefore finds you guilty of serious professional misconduct.

The Panel next considered what action, if any, to take in relation to your registration.

The Panel has borne in mind throughout its deliberations that any sanction imposed must be proportionate and appropriate, and that the purpose of sanctions is not to be punitive, but to protect patients and the public interest.

The public interest includes not only the protection of patients, but also the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.

The public interest can also include a doctor’s return to safe practice.

The Panel has balanced the public interest against your own interests.

It has taken into account the Indicative Sanctions Guidance published by the General Medical Council.

The Panel is aware that the question of what, if any, sanction to impose is a matter for the Panel, exercising its own independent judgment.

The Panel has given consideration to the submissions made by both Counsel.

Mr Tyson, on behalf of the Complainants has submitted that the only appropriate sanction in this case is that of erasure.

Mr Coonan, on your behalf, has submitted that an order placing tight restrictions on your registration would be sufficient.

The Panel is in no doubt that it is necessary to take action against your registration and that the sanction imposed must mark strong disapproval of your behaviour.

Given the serious nature of your misconduct the Panel has determined that to conclude this case without making any direction in respect of your registration or to issue a reprimand would not be sufficient.

The Panel next considered whether it would be sufficient to impose conditions on your registration.

The Panel is aware that you are a paediatrician of international renown and that you have contributed significantly to the field of paediatrics and child protection.

The Panel recognises that your misconduct has arisen as a result of the child protection work that you were undertaking at that time and that your actions, although clearly misguided, may have been motivated by a concern to protect children.

There is no evidence before the Panel to demonstrate that your actions have caused direct harm to patients or their families other than in cases involving child protection.

Since your reinstatement in 2001, following suspension by your Trust, you have not worked in child protection.

You have complied with the conditions to which your registration has been subject.

The Panel has been provided with testimonials indicating that you are held in high regard by your professional colleagues.

The testimonials highlight your clinical skills and commitment to the welfare of children.

They also indicate that you have undertaken important ground-breaking research, which has influenced how the medical care of babies and children has been managed both in the United Kingdom and internationally.

The Panel has heard oral evidence from Dr Parke, a consultant paediatrician at the University Hospital of North Staffordshire and from Dr Bridson, a recently retired consultant paediatrician and Chairman of the Trustees of Child Health Advocacy International, a charity founded by you.

Dr Parke has given evidence about your outstanding clinical ability and your compliance with the conditions currently on your registration.

He also informed the Panel that numerous letters of support and thanks from your patients have been received.

Both witnesses confirmed that they were aware of the findings of fact made by this Panel.

Nevertheless they remain confident in your clinical abilities.

The Panel has also considered carefully the evidence given by Dr Chipping, Medical Director at the time, to the Professional Conduct Committee in August 2004 and her testimonial dated 16 November 2006.

She holds in high regard your clinical skills and the contribution you have been making to the paediatric team at North Staffordshire Hospital.

The Panel has noted the determination of the Professional Conduct Committee in August 2004, the judgment of Mr Justice Collins in April 2005 and the determination of the Fitness to Practise Panel at the review in July 2007.

The panel has been mindful of Lord Bingham’s well known observation in the case of Bolton v The Law Society, adopted in the case of Dr Gupta, as noted in the Indicative Sanctions Guidance:-

“A profession’s most valuable asset is its collective reputation and the confidence which that inspires………The reputation of the profession is more important than the fortunes of an individual member……… Membership of a profession brings many benefits, but that is part of the price.”

The Panel also had in mind Lord Hoffman’s judgment in Bijl v General Medical Council [2002] Lloyds Med Rep 60, in which he said:-

“The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent if feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment……..”

Having considered all the evidence that is before it, the Panel accepts that were your registration to be restricted by tightly drawn conditions, patients would be unlikely to be at risk.

However, in considering the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour the Panel has concluded that the imposition of conditions would not reflect the gravity of your misconduct.

Your multiple failings over an extended period caused the Panel great concern.

Furthermore, the Panel is influenced by the fact that, although the events in
the current case predate those in the Clark case, there are now two instances where without justification you have accused a parent of murdering their child.

The Panel has therefore determined that to impose conditions on your registration, no matter how tightly drawn, would not be sufficient to protect the public interest.

The Panel next considered whether a period of suspension would be appropriate.

It has carefully balanced the public interest against your own interests.

It has taken into account the aggravating features of this case and the mitigation that has been advanced by you.

The Panel is particularly concerned by your lack of insight into the multiplicity of your failings over a long period.

The Panel is aware that an apparent lack of remorse should not result in a higher sanction but it has noted that notwithstanding the findings of fact you have not either directly or through your counsel offered an apology to any of the Complainants for your actions nor has there has been any acknowledgement by you as to your failings.

In all the circumstances the Panel has concluded that you have deep seated attitudinal problems and that your misconduct is so serious that it is fundamentally incompatible with your continuing to be a registered medical practitioner.

The Panel therefore directs that your name be erased from the Medical Register.

The Panel is satisfied that this is necessary in the public interest for the maintenance of confidence in the profession and in the interests of declaring and upholding proper standards of professional conduct and behaviour.

The effect of the foregoing direction is that, unless you exercise your right of appeal, your name will be erased from the register 28 days from the date on which notice of this direction is deemed to have been served upon you.

Having reached a decision that your registration should be erased, the Panel is minded to consider, in accordance with Section 38 of the Medical Act 1983 as amended, whether to direct that your registration be suspended forthwith.
The Panel will invite submissions from both Counsel on this matter.

Quite predictably, Dr. Southall has filed an appeal;