Stop The Press: Part Two; Access to Information Request:

This Blog's access to information request appears to confirm that $7,888.00 was paid out of taxpayer's funds to reimburse Dr. Charles Smith for legal expenses he incurred in suing the Canadian Broadcasting Corporation for libel.

I will repeat that: $7,888.20 - almost $8,000.00 out of the taxpayer's pocket to help Dr. Smith sue the CBC - in connection with the CBC Fifth Estate documentary which, we now know, as a result of the evidence called at the Goudge Inquiry, told the truth about Dr. Charles Smith and the Chief Coroner's Office.

In previous posts I have discussed this issue in the context of freedom of expression - and government funds being used to chill the press from performing its watchdog function.

That's a no-brainer.

But I am also troubled by the fact that the government should go to bat to protect Dr. Smith's reputation with taxpayer's dollars - when many of the innocent parents and caregivers affected by Dr. Smith - and their families - had to scrape together funds in order to retain lawyers who were willing to take on the government and its
supreme witness, Dr. Charles Smith.

Some had to borrow heavily.

Others had to use up their hard-earned retirement savings.

All this while trying to cope with the horror of being accused of killing a child - and, in some cases, fighting to fend off the seizure of other children by the Children's Aid Societies.

The thought that Dr. Smith's victims were unknowingly helping pay his legal fees out of the taxes they paid to protect his reputation is also disturbing.

I wonder how they feel.

We learned from the Inquiry that attempts to complain about Dr. Smith to the Chief Coroner's Office came to naught - because there was no political will to receive and consider them - and determine if they were justified.

(That allowed Dr. Smith to continue reaping the damage with impunity);

Since there was no channel within the Chief Coroner's to have complaints seriously probed and acted on, Dr. Smith's victims had only one other recourse - the media - and at the same time the government was helping thwart media scrutiny by supporting Dr. Smith's private lawsuit against the CBC.

I am also troubled by the secrecy with which this appears to have been done.

If it weren't for the Goudge inquiry we might never have discovered that public funds had been used to fund this private law suit.

What now?

Justice Stephen Goudge is set to issue his report on Sept. 30, 2008: Perhaps he could recommend that Dr. Smith return the $8,000 to government coffers.

I would love to see the Canadian Civil Liberties Asociation take on this issue: It goes to the heart of our democracy;

I would also like to see the CBC wake up to this issue that hit them so close to home, follow up with its own stories, and join me on my appeal of the government's refusal to provide several documents relating to this matter on the basis that they are protected ny the "solicitor client privilege."

Harold Levy...hlevy15@gmail.com;

Part Seven: Gaurov's Father; Shocking Disclosure At Inquiry: Kumar Not Told By Crowns About Recent Decision Blasting Smith And Sick Kids SCAN Team;

"THIS WAS A MAN WITH NO RECORD -- A NEW IMMIGRANT TO THIS COUNTRY, A WIFE WITH A BRAIN TUMOUR, A JOB. HE WAS A CONTRIBUTING MEMBER OF SOCIETY, AND ALL OF THE SUDDEN AN ATOMIC BOMB GOES OFF IN HIS LIFE -- MURDER 2. YOU HAVE TO TELL HIM BECAUSE THEY ALWAYS ASK, WHAT'S THE PENALTY, AND YOU SAY, LIFE WITH A MINIMUM PENALTY OF TEN (10) YEARS -- TEN (10) YEARS. HE WOULD HAVE GOTTEN OUT OF JAIL HAD HE
GOTTEN TEN (10) YEARS, AND IF THE TRIAL HAD TAKEN TWO (2) YEARS, HE'S JUST BE OUT NOW FOR FOUR (4) YEARS, AND HIS WHOLE LIFE WOULD BE SHATTERED. NOW, I -- I SEE IN THESE NOTES THAT I'VE BEEN GIVEN FOR THE FIRST TIME TODAY, THE MEETING JANUARY 30TH OF 1992, THE WORDS "DAMAGE CONTROL" APPEAR DEALING WITH THE CASE FROM MR. JUSTICE DUNN. I CAN'T MAKE A CONNECTION BETWEEN THAT MEETING AND WHAT HAPPENED IN MY CASE, EXCEPT THAT IT HAPPENED JUST A FEW WEEKS LATER OUT OF THE SAME OFFICE. I'M STILL SHOCKED."

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LAWYER DAVID GORRELL IN RESPONSE TO QUESTIONS POSED IN CROSS-EXAMINATION BY JAMES LOCKYER;

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One of the most shocking revelations from the Goudge Inquiry is Dinesh Kumar's lawyer's evidence that he was not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

As we have seen in many previous posts, this decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN team.

As will be seen towards the end of this post, a lack of access to this decision had dire consequences for Mr. Kumar which he bears to this day.

By was of background information, here is a post I ran on Thursday, January 10, 2008, under the heading "Damage Control And Lost Opportunity: The Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) Unit;"

It describes how the Hospital for Sick Children resorted to "damage control" rather than to dissecting Dunn's decision in order to see what they could learn from it in order to avoid future debacles.

I did not realize the additional significance of the damage control meeting - the presence of a prosecutor - until I was later exposed to Gaurov's case at the inquiry.

Here is the earlier post as published:

""C.S. FEELS HE WAS MISUNDERSTOOD."

FROM HOSPITAL FOR SICK CHILDREN DAMAGE CONTROL DOCUMENT;

One would like to think of the Hospital For Sick Children as an institution that wants to learn from its mistakes.

This would especially apply to the serious medical errors made by Dr. Charles Smith and the hospital's Suspected Child Abuse and Neglect (SCAN) Unit that led to a 12-year old girl Timmins, Ontario girl being wrongfully charged with manslaughter.

However, a document has emerged at the Goudge inquiry which shows that the SCAN team reacted to Ontario Court Judge Judge Patrick Dunn's scathing criticisms of its work by holding a "damage control" meeting at which Smith defended his work, and Dunn was branded as "strange" and "from the bottom of the heap"

The handwritten document does not evidence any concern on the part of Smith or the members of the SCAN team that Judge Dunn's rejection of the hospital's opinion that baby Amber was a victim of "shaken-baby syndrome," as opposed to a fall down the stairs, may have been well-founded.

Nor does it evidence any desire to figure out what went wrong so that the risk of future wrongful prosecutions can be minimized.

Instead, after noting that the meeting was attended by the members of the SCAN team and several prosecutors, it goes on to describe Dunn as "strange" a member of the "family court" and "not used to criminal standards."

It goes on to express a concern that, "the judgment is likely to be passed around and (symbol for "therefore") damage control)";

(In retrospect, this prediction was right on the mark as Dunn's carefully structured judgement is resonating today at the core of the Goudge inquiry as one of the first alarm bells to sound over Smith's competence.)

But is is evident that the "damage control" ultimately failed as the hospital's failure to accept its responsibility and do something to remedy its mistakes is now available on the public record for all to see.

One of the most disturbing suggestions in the document is the comment that there is "no precedential value re medical evidence. Family court judge at bottom of heap. Error may be brought up in another case."

The reality is that if Dunn's criticisms - as set out in a beautifully structured decision - had been heeded back in 1991, so many other individuals would have been spared the torment of being wrongfully accused of killing their beloved children.

Instead, the consensus of the meeting appears to be that it is, "acceptable to say we disagree with judge's judgment."

The notes indicated that Smith defended his opinion in the case on the basis that "our standard is higher than theirs" - (an apparent reference to the large number of U.S. experts called by the defence) - "but still has to be held up to a higher standard."

He also attempts to deflect criticism from himself by saying that the case involved an "outside opinion" and that he "relied on police photos."

"C.S. feels he was misunderstood," the anonymous minute-taker wrote.

This is typical of Dr. Charles Randal Smith.

Evidence called at the Inquiry indicates that even his defenders at the highest levels of the Chief Coroner's Office observed toward the end of his career at the hospital that he was incapable of accepting responsibility for his actions and tended to blame others for his own mistakes.

During his questioning yesterday of Dr. Dirk Huyer, former head of the SCAN team and Dr. Katy Driver, who played a prominent role for that team in Amber's case, lawyer Louis Sokolov, who represents the Association in Defence of the Wrongly Convicted, (AIDWYC) suggested that the Hospital's damage control meeting represented, "a lost opportunity."

He sure got that right.

(See previous posting: "A glimmer of understanding: Part Three; A dangerous mix; Dr. Charles Smith and the Hospital For Sick Children SCAN team.)

Posted by Harold levy at Thursday, January 10, 2008;"

Goudge Inquiry Counsel Mark Sandler twigged to the fact that the prosecutor who was present at the damage control meeting played an active role in the Kumar investigation - just several weeks later;

Here is Sandler's examination of David Gorrell, Kumar's lawyer, on this connection:

(Bear with me: I prefer to give full stretched of evidence rather than to risk inadvertently distorting the substance through editing);

CONTINUED BY MR. MARK SANDLER:

MR. MARK SANDLER: Thank you. Mr. Gorrell, we know from the materials that have been filed here that -- that Gaurov died in Toronto on March the 20th, 1992, at the age of five (5) weeks. Due to suspicions about his death, his older brother was apprehended by CAS on that same date. We also know that on June the 16th of 1992, the report of post-mortem examination prepared by Dr. Smith was issued. I'm going to take you to the overview report if I may, which is at Tab 1 of your materials. And if you'd go to PFP143828, at paragraph 59, and you'll
see paragraph 59 is at page 32 of the overview report.

MR. DAVID GORRELL: Thank you.

MR. MARK SANDLER: And you'll see that on June the 26th of 1992, there was a meeting involving Dr. Smith, Constable Line, Detective Rolf Prisor, and -- Prisor, and Crown counsel, Mary Hall and Sandra Kingston. Just stopping there for a -- for a moment. First of all, what was Ms. Hall's position back in June
of 1992, as you understand it?

MR. DAVID GORRELL: I believe she was the -- either a Bureau Chief, or a Crown attorney, an independent Crown attorney. I'm not sure if Scarborough had been hived off yet, and made into a -- a jurisdiction for a separate Crown. But she was the head person. (Blogster's Note: Prosecutor Hall did not testify at the Inquiry. Her side of the story is not represented in this post.)

MR. MARK SANDLER: And were you aware of what, if any, role she played in the Gaurov case?

MR. DAVID GORRELL: Well, she would obviously supervise. She did participate in the -- in a judicial pretrial that we had on October 22nd of 1992, but that was simply because the assigned Crown, I believe, was not available.

MR. MARK SANDLER: And that was Ms. Koehl?

MR. DAVID GORRELL: Ms. Koehl, yes.

MR. MARK SANDLER: And you see from the overview report that that meeting involving the police and Crown counsel and Dr. Smith took place on June the 26th, and the overview report reflects that, according to a police report, Dr. Smith confirmed his diagnosis of Shaken Baby Syndrome, and added that the injuries probably resulted from continuous shaking as opposed to a single violent shake. We also know, Mr. Gorrell, that on June the 29th of 1992, Gaurov's father was arrested for second degree murder, some three (3) days later.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And the bail hearing took place on July the 10th -

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: -- and were you involved in the bail hearing?

MR. DAVID GORRELL: I became involved on July 2nd. The case first went to Dhamen Kissoon -- K-I- S-S-O-O-N, who had gone to the bar in 1989, and he retained me to lead on the defence. And I became involved on June 30th. And we worked on preparing the necessary affidavits and so on for the bail hearing from June 30th on.


MR. MARK SANDLER: All right.

MR. DAVID GORRELL: Until July 10th.

MR. MARK SANDLER: And we know from the materials that have been filed that the Crown consented to the release of your client on bail, pending trial. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And I want to ask you about a conversation that your dockets reflect took place with Rita Koehl on the same date of the bail hearing, June -- July the 10th.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Tell us what transpired.

MR. DAVID GORRELL: This is a -- a case that's sixteen (16) years ago, and therefore, I'm relying heavily on the notes that were found in Mr. Kissoon's file. My own file isn't -- is no longer available. According to the dockets and the notes that I have here, on the day of the bail hearing, Ms.
Koehl, with Sergeant Prisor, I think, present, discussed with me the possibility of a resolution by way of plea to something possibly for no time.

MR. MARK SANDLER: All right. And how did you react to the fact that on a murder case, the Crown had initiated a discussion with you that involved a
potential plea for -- for no time?

MR. DAVID GORRELL: I was surprised.

MR. MARK SANDLER: And did you have any explana -- or was any explanation given to you as to why the Crown was taking that position as -- that early and at that stage in the proceedings?

MR. DAVID GORRELL: Not that I recall, and I would not have asked. You don't look a gift horse in the mouth.

MR. MARK SANDLER: All right. And similarly, I see that, as you've indicated, there was a consent to your client's release on bail, pending trial.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Was that in your experience usual for a murder case?

MR. DAVID GORRELL: John would be better to ask. I haven't done nearly as many as he has, but you can get consent releases on murders, and I think this would have been a case where you could have.

MR. MARK SANDLER: All right. Now, just seeing what, if anything, we can figure out about -- about why the Crown was motivated to proceed in the way it did. I want to ask you about something that you may or may not know about, and that is, we've heard some evidence here, Mr. Gorrell, that on January -- in January of 1992, that same year -- a conference -- a case conference was conducted at the Hospital for Sick Children in connection with the Amber case, and it arose out of the comments that Justice Dunn had made about the Hospital for Sick Children witnesses, including Dr. Smith, at -- at that trial, and we also know that in January of 1992, Ms. Hall and Ms. Kingston participated in that conference.
Two (2) questions arising out of that. Did either Ms. Hall or Ms. Kingston, or anyone else from the Crown's office have any discussions with you about the Amber case and its impact upon the Gaurov case?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: Were you aware that -- that the Crowns, including Ms. Hall, had participated in a case conference in connection with the Amber case before the Gaurov case had taken place?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: All right.

MR. DAVID GORRELL: All right, let me rephrase that. I know that they met again, I think, on June the 26th about this case, about the -- the Gaurov case, but I was unaware of this meeting. I have the notes in front of me here. I've seen them today for the first time. I was unaware of this meeting on January 30th, 1992.

MR. MARK SANDLER: All right. And you've made reference to -- to the meeting that took place here and -- and I've made reference to the Crown, so just taking you to page 32, paragraph 59, that's the reference that I took you to a little bit earlier of the meeting that took place involving Dr. Smith, the police, Ms. Hall, and Ms. Kingston. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And were you aware that -- that that conference had taken place prior to the laying of the charges?

MR. DAVID GORRELL: I don't think so. It's been a long time ago, but I don't think I was aware of that meeting, and I don't think I had the police notes of it. I do have the original disclosure here from 1992, and the summary that is -- is available in these materials is not in that disclosure.

MR. MARK SANDLER: Okay, and leaving aside your awareness of the June 26th, 1992 meeting, you earlier indicated that you were the one that actually
gave Mr. Struthers a copy of the Amber decision, and this would be sometime later on.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Were you even aware of the Amber decision back in June of 1992 or during the currency of your involvement in the Gaurov file?

MR. DAVID GORRELL: No, I was not.

MR. MARK SANDLER: Was it something that you would have been like -- that you would have liked to have been aware of?

MR. DAVID GORRELL: Oh, yes;"

As the following transcript indicates, lawyer James Lockyer, who represents William Mullins-Johnson, Sherry Sherret-Robinson and at least seven unnamed persons at the Inquiry, was quick to zoom into this connection in his cross-examination of Gorrell;

MR. DAVID GORRELL: This was a man with no record -- a new immigrant to this country, a wife with a brain tumour, a job," Gorrell told Lockyer;

"He was a contributing member of society, and all of the sudden an atomic bomb goes off in his life -- murder 2. You have to tell him because they always ask, What's the penalty, and you say, Life with a minimum penalty of ten (10) years -- ten (10) years. He would have gotten out of jail had he gotten ten (10) years, and if the trial had taken two (2) years, he's just be out now for four (4) years, and his
whole life would be shattered. Now, I -- I see in these notes that I've been given for the first time today, the meeting January 30th of 1992, the words "damage control" appear dealing with the case from Mr. Justice Dunn. I can't make a connection between that meeting and what happened in my case, except that it
happened just a few weeks later out of the same office. I'm still shocked.

MR. JAMES LOCKYER: The same Crown, as a matter of fact --

MR. DAVID GORRELL: Well, no, -- well, no, Ms. Koehl wasn't on this case, but Mary --

MR. JAMES LOCKYER: Mary Hall --

MR. DAVID GORRELL: Mary Hall, the same Crown attorney.

MR. JAMES LOCKYER: -- was the common denominator to your case and their case, is that right?

MR. DAVID GORRELL: Yes, and the Scarborough courthouse --

MR. JAMES LOCKYER: Mm-hm.

MR. DAVID GORRELL: -- and Charles Smith, Of course. But --

MR. JAMES LOCKYER: I think Mary Hall was actually the Crown when you did the pretrial in October--

MR. DAVID GORRELL: Yes, she did.

MR. JAMES LOCKYER: -- on the Gaurov case, is that right?

MR. DAVID GORRELL: She was there. I think Ms. Koehl was unavailable for some reason, but...

MR. JAMES LOCKYER: Yes. And I -- as I recall, Mr. Koehl also said that any plea arrangement would be subject to the approval of Ms. Hall.

MR. DAVID GORRELL: That I don't remember, but I -- I wouldn't be surprised in any case.

MR. JAMES LOCKYER: It's in one (1) of the documents in the file you arrived with today.

MR. DAVID GORRELL: Really?

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: Fine, then I accept
that.
MR. JOHN STRUTHERS: It was the practice
at the time.

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: But the -- just -- just to continue with this, what -- I said, my heart went out to Gaurov's father. I don't know how I'd -- I'd act in this situation if I had someone like Mr. Struthers saying, Well, you can get ninety (90) days on weekends. After emission, that's sixty (60) days. That's a maximum of fifteen (15) weekends. The Mimico is jammed, so you'll wind up doing only three (3), or four (4), or five (5). You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on a
manslaughter. I really didn't think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I'm pretty sure I'd make the
decision he made even if I were not guilty. But as his lawyer, I'm the only person in the whole scenario that Doesn't judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him. When he says, I want to plead guilty, and
I will sign on the dotted line, and I did it, I'm not going to tell him, No, sir, you're going to face the trial and if you get eight (8) years, that's for the
greater good of the justice. I took his instructions and I -- I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.

MR. JAMES LOCKYER: And the instructions that you received from him by way of the form that you prepared, obviously the way it's typed up, it was -- the words were your words in that document, is that fair?

MR. DAVID GORRELL: Yes, they were my words.

MR. JAMES LOCKYER: And they were words designed to fit the notion of criminal negligence. Reckless is hardly a word an east Indian that doesn't
speak English is going to come up with.

MR. DAVID GORRELL: No, the -- this -- these were my words.

MR. JAMES LOCKYER: Yes. And, as Mr. Struthers was just saying, it was more a document for your protection than a document to assist Gaurov's
father, is that fair?

MR. DAVID GORRELL: I think that's probably fair. It's also a document that you would use to fix his mind as to what he's doing, so that he can't
come back and -- I guess to protect counsel, that's right. I(t) was thirteen (13) pages;"

Dear readers:

Imagine how the prosecutors must have felt to learn about Justice Dunn's troubling criticisms of the work performed by Dr. Charles Smith and the Hospital for Sick Children SCAN-TEAM in the then recent Amber case;

Would that not have raised serious questions as to whether or not there was a reasonable possibility of obtaining a conviction in the case?

At the very least, shouldn't the existence of the decision - which was not likely publicly available at that time - have been made to the defence lawyers?

At least, that way they could assess the strength of the Crown's case before putting the plea to criminal negligence causing his son Gaurov's death to his client whether or not the law relating to disclosure at the time required them to do so?

As a criminal lawyer, I suspect that after reading the Dunn decision I would have been in a position to more confidently advise the client to contest the murder charge - instead of having to go through the contortions involved in a criminal negligence plea where I would have so much doubt about my client's guilt?

Just imagine how much pain this mourning family would have been spared - let alone the need to bear the load of sixteen years of stigma in their tiny community - and having to fight for ultimate exoneration after sixteen years in the Ontario Court of Appeal;

Next: Part Seven; Gaurov's father: Another shocking revelation;

Harold Levy: hlevy15@gmail.com;

Stop The Press: Access To Information Request: Government Funding Of Smith Libel Suit Against CBC; Payment Authorized; Appeal To Be Launched;

"THE INVOICE - ON THE LETTERHEAD OF GOWLING, LAFLEUR, HENDERSON LLP, IS FOR A TOTAL OF $7,880.20;

AN APPARENTLY HAND-WRITTEN SIGNATURE "J. YOUNG M.D." IS LOCATED AT THE BOTTOM OF THE INVOICE.

A SIMILAR APPARENTLY HAND-WRITTEN NOTE IS LOCATED AT THE TOP OF THE INVOICE , SAYS "PAY DR. C. SMITH," AND HAS AN ARROW POINTING TOWARDS HIS NAME AND ADDRESS."

DESCRIPTION OF RECORD PROVIDED TO THE CHARLES SMITH BLOG IN RESPONSE TO ITS ACCESS TO INFORMATION APPLICATION;

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Dear Readers:

I have received a response to this Blog's application for records relating government funding of Dr. Charles Smith's lawsuit against the Canadian Broadcasting Corporation.

The government has provided me with three records;

The first record (two pages) is described as, "legal services invoice."

The second record (one page) is described as, "a printout of payment data."

The invoice - on the letterhead of Gowling, Lafleur, Henderson LLP, is for a total of $7,880.20;

An apparently hand-written signature "J. Young M.D." is located at the bottom of the invoice.

A similar apparently hand-written note is located at the top of the invoice , says, "pay Dr. C. Smith," and has an arrow pointing towards his name and address.

The third record bears the heading: "GEAC Financial System Payment Data."

Here is some of the information in contains:

Company: MSG2;

Name: Chief Coroner's Office;

Account: Legal Services Other;

Vendor Name; Dr. Charles Smith;

Amount: $7880.20;

Run Date: 11/3/2001;

The access coordinator's letter indicates that "solicitor client privilege has been waived" in relation to the first three records.

It goes on to say, however, that:

"Pages 4 to 7 are records that contain information reflecting confidential privileged communications. Access to these records is denied in accordance with the discretionary exemption from disclosure contained in section 19 of the Act for records that are subject to solicitor-client privilege or prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation."

Please be advised, dear readers, that I intend to pursue this matter by way of an appeal.

True, this would appear to conclusively establish that public funds were paid to Dr. Smith's lawyers to enable them to sue the CBC for libel in connection with the Fifth Estate Documentary.

(I personally find this to be outrageous and invite our reader's views);

However, I want to see the remaining documents to determine what, if any consideration was given to the constitutional propriety of using tax-payer's funds to to back a law-suit which could have the effect of chilling public discussion of Dr. Smith's work;

Any suggestions from our readers as grounds to be included in the appeal would be greatly appreciated.

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Here is the previous post as published on March 3, 2008, under the heading, "Blog applies for information on Ontario Government funding of private lawsuit brought by Dr. Charles Smith against the CBC.":

"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 -- 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."

FORMER CHIEF CORONER DR. JAMES YOUNG TO GOUDGE INQUIRY;

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?

DR. JAMES YOUNG: I did.

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."

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When I wrote the above post I had somehow missed the fact that Dr. Smith admitted asking Dr. Young to secure government funding for his lawsuit.

I then included Dr. Smith's testimony on the issue in a posting called "How did I miss this?" which ran on April 12, 2008, as follows:

MS. LINDA ROTHSTEIN: WHY DID YOU FEEL THAT YOUR LAWSUIT WAS APPROPRIATE FOR THE GOVERNMENT OF ONTARIO TO FUND?

DR. CHARLES SMITH: THE -- THE ISSUE OF THE LAWSUIT WAS ONE (1) WHICH I HAD DESCRIBED WITH DR. YOUNG AND -- OR I HAD DISCUSSED, I'M SORRY, WITH DR. YOUNG. AND IT WAS AS A RESULT OF THOSE DISCUSSIONS THAT -- THAT DR. YOUNG HAD GIVEN ME HIS ADVICE ON WHAT -- WHAT HE THOUGHT WOULD BE REASONABLE FOR ME, AND AS PART OF THOSE DISCUSSIONS, INDICATED THAT -- THAT, AS BEST I RECALL, THAT IN HIS ROLE, EITHER AS CHIEF CORONER OR AS ASSISTANT DEPUTY MINISTER, THAT -- THAT HE COULD SEEK FINANCIAL SUPPORT FOR A LAWSUIT.

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DR. CHARLES SMITH: GOUDGE INQUIRY; JANUARY 29, 2008;

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As my brains started waking up this morning - with the help of a steaming cup of coffee - I started thinking about former Chief Coroner Dr. James Young's evidence that he helped secure government funding for Dr. Charles Smith's law suit against the Canadian Broadcasting Corporation in connection with a blistering "Fifth Estate" documentary that was highly critical both of Dr Smith and the Chief Coroner's Office;

(I am currently waiting for a response to my application under Ontario's access to information legislation for documents relating to Dr. Young's testimony at the Goudge Inquiry);

It occurred to me that Dr. Young's evidence was just one side of the story.

Was it possible that Dr. Smith had been asked about this during his five days of testimony - and that somehow I had missed it?

Sure enough, I discovered that Dr. Smith had been questioned directly on the point on JANUARY 29, 2008, while under cross-examination by Commission Counsel Linda Rothstein;

That testimony reads as follows:

MS. LINDA ROTHSTEIN: We'll come back to it. Do you recall asking Dr. Young to obtain government funding with respect to your lawsuit against the Fifth Estate?

DR. CHARLES SMITH: I -- I don't know if I asked him or he offered it, but -- but yes, that conversation did occur.

MS. LINDA ROTHSTEIN: Why did you feel that your lawsuit was appropriate for the Government of Ontario to fund?

DR. CHARLES SMITH: The -- the issue of the lawsuit was one (1) which I had described with Dr. Young and -- or I had discussed, I'm sorry, with Dr. Young. And it was as a result of those discussions that -- that Dr. Young had given me his advice on what -- what he thought would be reasonable for me, and as part of those discussions, indicated that -- that, as best I recall, that in his role, either as Chief Coroner or as Assistant Deputy Minister, that -- that he could seek financial support for a lawsuit.

MS. LINDA ROTHSTEIN: But, Dr. Smith, didn't the Fifth Estate raise the very issues with respect to Nicholas' case and Amber's case that you've now acknowledged in your written evidence; the same issues that you've acknowledged manifested errors by you?

DR. CHARLES SMITH: The -- the Fifth Estate did point to issues, but at the same time, I think that I minimized or rationalized some of those issues or errors by things like the fact that I was supported by opinions of others, which came -- which -- which lay similar to mine or supported mine. (A)nd so the -- and so as I explained yesterday, I -- I think I minimized them and -- and reacted to them as -- to make them go away, as opposed to try to dissect through and -- and determine the truth or the kernel of the issues.

MS. LINDA ROTHSTEIN: Would it be fair to say you were trying to fend off any criticism of you to the extent you could?

DR. CHARLES SMITH: Yes. Absolutely. Yes. Yes. That was part of the discussion that had gone on with Dr. Young as well.

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Harold Levy...hlevy15@gmail.com;

Jayson Blair and Sir Roy Williams: Trusted Professionals Who Make Stuff Up And Publish It As Fact?

"CLEARLY ROY MEADOW WAS NOT HOUNDED BY LANCET’S EDITOR IN 1977, AND TOO FEW SINCE, ABOUT THE LACK OF SCIENTIFIC METHODOLOGY, RESEARCH APPROVAL OR CONSENT, PEER REVIEWED FINDINGS, PRESUMABLY AVAILABLE IN HIS NOW “SHREDDED” NOTES."


BARBARA BRYAN: NATIONAL CHILD ABUSE DEFENCE AND RESOURCE CENTRE;

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Every once in a while, I come across an article that makes me pause and say, "Aha, now I finally understand."

"Is Munchausen Proxy's Roy Meadow the Jayson Blair of Medical Journals?" - published on Sept. 8, 1995 - is one of those articles.

It is written by Barbara Bryan of the, "National Child Abuse Defense & Resource Center which describes itself on its website (falseallegations.org) as "a non-profit organization dedicated to educating professionals and the falsely accused on factual, scientific data regarding child abuse allegations."

Bryan draws comparisons between former New York Times reporter Jayson Blair and Sir Roy Meadow, as she attempts to answer the question: “What can you say about a trusted professional who makes stuff up and publishes it as fact?”

Sir Roy Meadow needs no introduction to the readers of the Blog.

For those that are unfamiliar with Jayson Blair, WIKIPEDIA tells us that he is the son of a federal executive and a school administrator.

"He attended the University of Maryland, College Park as a journalism major," the WIKIPEDIA note continues.

"Blair was the editor-in-chief of the student newspaper, The Diamondback, for the 1996-97 school year.

According to a letter later signed by 30 staffers, Blair made four serious errors as a reporter and editor that brought his integrity into question.

The letter-signers alleged that questions about those errors were ignored by the board that owned the paper. Among the mistakes, they cited an award-winning story about a student who died of a cocaine overdose, who was subsequently found to have actually died of a heart ailment.

Blair became a summer intern at The New York Times in 1998, and at the conclusion was offered an extended internship.

He indicated that he had to complete some coursework in order to graduate, and The Times agreed to defer it.

He returned to The Times in January 1999, claiming he had received his degree, when in fact he had not. That November, he became an "intermediate reporter."

Bryan begins by noting that, "Without proof that either “case” in Roy Meadow’s “Munchausen by Proxy: The Hinterlands of Child Abuse” exists, 29 years after publication in Lancet, one may belatedly dub Sir Roy the Jayson Blair of medical journals."

“What can you say about a trusted professional who makes stuff up and publishes it as fact?,” she continues;

"“The will to fabricate cuts across disciplines, with academics and scientists inventing data, too.”

“The unmasking of a counterfeiter tends to inspire busy discussions of his motive. …No single explanation can cover every case, but my guess is that most liars make things up for the simple reason that they don’t have the talent or the ability to get the story any other way.”

“The lesson I learned isn’t to refrain from asking writers for detail but to be skeptical about details that sound too good or that you had to push too hard to get the writer to uncover or that are suspicious simply because any writer worth his salt would have put them in his first draft. All that said, it’s almost impossible for an editor to beat a good liar every time out.”

Appreciation for an excellent piece by Jack Shafer, Slate editor at large whose May 8, 2003 observations are quoted above (http://slate.msn.com/id/2082741). He wrote about eager-to-please American reporters, professors and researchers. None enjoyed the professional crash, but because of an editor’s vigilance and acting on duty the public and publications were spared additional damage.

Deluged by “Details”

“The Jayson Blair Project: How did he bamboozle the New York Times?” was not written about former pediatrics nephrology professor Roy Meadow’s world-changing, family-fracturing Lancet article of August 13, 1977. In principle it could have been.
(http://web.tiscali.it/humanrights/articles/meadow77.html)

While Shafer’s observations on how editors may invite “embellishing, exaggerating, and outright lying in print” hint of the adjectives overload that ultimately exposed Jayson Blair, Janet Cooke and others, Roy Meadow also weight-loaded his writing in ways that befuddle readers to this day.

Clearly Roy Meadow was not hounded by Lancet’s editor in 1977, and too few since, about the lack of scientific methodology, research approval or consent, peer reviewed findings, presumably available in his now “shredded” notes.

Even more obviously, today’s Lancet editor avoids reference to the original sole source for MSP and subsequent FIBS (factitious illness by proxy), Meadow’s motivation probability theory. Such theories exist because “Hinterlands” does.

Contemporary researchers and experts claim that MSP is “now separated into two constructs—factitious disorder by proxy—FDP, and pediatric condition falsification—PCF.” That is a futile cover story for the future of MSP uncovered.

A Good “Story”

Anyone growing up in the USA’s “South” is likely to know the word “story” used to mean an untrue “story” or tall tale. “Are you telling me a ‘story’?,” is asked sternly of a child offering a hopeful explanation of how the cookie jar broke.

Did Roy Meadow tell the world a “story” in whole or part? Did unquestioned publication in prestigious Lancet bestow a blank check on his career? Did it enable him to earn while he learned just how high his fees and how wide his statistical probabilities could go until he met the limit at UK’s recent GMC hearings?

Was “First Case” Kay—as a UK health writer asserted she was in 2004—the original MSP “aha” experience? The 1977 Lancet article asserts about Kay’s mother that “…there was something about (her) temperament and behavior that was reminiscent of the mother described in case 2, so we decided to work on the assumption that everything about the history and investigations were (sic) false.” If that is true, doesn’t “Second Case” become the first instead?

Could Roy Meadow have saltloaded the baby first and needed cover? Did he hope an emotive and new “disorder”—let someone else decide if it belongs in the medical, mental health, child welfare, law enforcement, you name it field—would divert attention from what happened? Did he switch order and tell on himself?

“Expressed breast milk collected from the mother of case 2 early in the course of the illness had a very high sodium content”? What if a genetic disorder she survived was overcoming the life of her less hardy infant? DNA checked? Never.

What if the baby’s monthly attacks—in “between (which) he was healthy and developing normally”—suggested chloride content of the mother’s milk might fluctuate similarly? What if a second test was “normal” for salt but no further testing was done because “proof” was the doctor’s opinion on its way to press?

Let’s Make it Simple

What basic elements of any story are wanted by even the least demanding editor? Remember the mantra: Who, what, when, where, how and why?

“Who” is foremost. Twenty-nine years later, after Roy Meadow continued to benefit from multiple Jayson Blair-like free passes, not a single name other than his is connected with the “Hinterlands” stories.

Who were the “…sixteen consultants (who) had been involved in (Kay’s) care”?

Surely the “…five consultants (who) came into the hospital specifically to see her…on one bank holiday” would remember so doing. Why has none offered to validate Meadow’s “story,” after hearing his notes are “shredded”?

Nurses? Two or more were tapped to get the goods on the mothers: both specimens of combo menstrual blood and mother-child urine for “Kay” and the surreptitiously salted breast milk for the sick baby’s mother.

Lab technicians? Surely some who did those 150 urine cultures related to Kay could step forward. Without their findings where would we and Sir Roy be?

Family members? How were “Kay” and her real or imagined brother affected by their family’s experience? Were they barred from receiving medical services because too many were wrongly delivered to Kay per her parent proxy?

If Baby Charles were real and his two healthy older siblings thrived during the past three decades, have babies born into the family shown signs of the genetic disorder? If so, were they whisked into care as victims of “generational MSP”?

“What” may be the startling revelation of Mata Hari mothers bent on hastening undetectable infant deaths exploiting doctors as their proxies. However, from the “no real details” article of 1977 through knighthood to a rich retirement, Roy Meadow’s life illustrates a more probable “what”: a cobbled together motivation theory that established him as “the first” to notice, name and claim MSP.

“When”? Meadow’s Introduction to “Hinterlands” suggests the landmark MSP “case” developed “over a period of six years.” Kay came last to Leeds at age 6. That time frame trumps competition among colleagues, including any who previously alluded to the MSP epithet. Is that the purpose for “six years”?

“Where” are the names of four centers (two for each child prior to Leeds)? Surely professional courtesy informed those duped doctors that suspect (now “proved”) Munch Moms had “skillfully altered specimens and evaded close and experienced supervision.”

No extra space is required to name Kay’s “district general hospital” or “regional teaching hospital." Were centers left nameless so colleagues and others would assume events must have happened elsewhere?

“How” is easiest of all: because Lancet enabled Roy Meadow to publish that now discredited piece and, still today, assures support for the details-deficient article.

“Why”? In a word, projection. By painting targeted mothers with the attention-seeking brush he wielded for himself, Roy Meadow constructively silenced them. His stock went up; motherhood and time-honored beliefs about it plummeted.

Royal “We” or Solo?

While asking for still lacking information, one should learn whether Roy Meadow used the real or royal “we.” That matters. Either numbers of others were involved in saltloading actual or invented Baby Charles or Sir Roy acted alone. Or, none of it ever happened, of course.

Mind-bending example: “We” decided, before “we” saw “second case”—logically noted because of “first case”—we would assume “Kay’s” mother was lying because “there was something reminiscent of the mother described in case 2.” Wasn’t that the “case” that could not yet have occurred? Small wonder I still find “new” words in that compact, complex but tantalizingly vague little gem in Lancet.

In the end, and in the beginning, all a reader ever found in “Hinterlands” was mind-numbing detail about lab results allegedly associated with unidentified children. No peer review, replication or scientific methodology supports Roy Meadow’s “story.” It is too late now to dig up willing “witnesses.”

Jayson Blair would take his hat off to Roy Meadow and Lancet. Parents affected by a mistaken or malicious MSP label may have had their children, their family’s future, taken off. Removals are done in the name of “the people.” When will they really read “Hinterlands” and bring the children back?"

Oh, yes. The Charles Smith connection.

Dr. Smith acknowledged to the Goudge Inquiry that he had invented a fictitious conversation in context of the Amber case in which he claimed the trial judge - Justice Patrick Dunn - had praised himself and the SCAN team at the Hospital for Sick Children In Toronto for their outstanding work.

In fact, Smith had been highly critical of both both of Smith and his Colleagues from the Hospital - and rejected their opinions.

Smith testified about this fictitious conversation as if it were true while under oath in court and repeated to others included investigators of the College of Physicians and Surgeons of Ontario - the regulatory body of the self-governing medical profession in Ontario;

A judge who reviewed Smith's work in many cases faulted him for distorting the testimony he gave for the prosecution in court against parents and caregivers charged with killing children.

Sir Roy Williams. Jayson Blair. Charles Smith?

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P:S: Ms. Bryan included the following paragraphs - which I believe are well worth repeating in her letter to this Blogster.

"Well, time for me to go to work.

I did not mean to get into this; but, in my view it remains vital to show that no one--Charles Smith included, of course--could "diagnose" a myth for which there remains no proof or even any mechanism to gain details.

How convenient that Roy claims to have "shredded his notes."

That infant autopsies and death investigations include "visiting the scene" but not scrupulous work of board-certified medical geneticists or hematologists, or mandated attention to recent immunization records, not to mention possible mold in air ducts of a baby's home, etc. allow the "parents did it" prosecutions to continue.

Some time ago a BBC report noted my insistence that those post-mortem concerns listed must become standard in infant autopsies or the same wrong results would persist, as they have.

I fully understand that, for example in America, it would take all of those complicit in prosecuting wrongful allegations of non-existent MSP (including judges and social workers and even Governors on whose desks the buck stops re administrative actions which, in fact, are both child protection investigations and prosecutions) to admit and agree that they really should not have continued such without getting the whole truth on whether or not there are any scientific grounds or any at all for MSP as people variously choose to know it.

This includes what I've coined as FIBS or fabricated illness by suspicion and the morphed and new names the wannabe self-styled experts use to distinguish themselves (pediatric condition falsification, mbp maltreatment, etc.)

It also includes the newer, more popular FII to attempt to seem more professional and also to peel away from Roy and his downfall...which is not working because everyone "needs" the mystique and monstrosity conveyed by the term MSP it appears.

Ms. Bryant is writing this in May, 2008 more than three decades after Sir Roy Meadow wrote his "ground-breaking" - or should I say "ground-shattering" paper.

I very much appreciate her getting in touch with the Charles Smith Blog.

Harold Levy...hlevy15@gmail.com;

Expert Evidence: The Fallacy Of The Non-Partisan Medical Expert; Expert Opinion Business In Ontario Exposed; Civil Litigation Context;

"BOTTOM LINE - JUDGES AND LAWYERS IN BOTH THE CIVIL AND CRIMINAL CONTEXT OUGHT NOT FEIGN SURPRISE THAT DR.SMITH (AND A TON OF OTHERS JUST LIKE HIM) THOUGHT HIS JOB WAS TO STRATEGICALLY SHAPE HIS EXPERT TESTIMONY SO AS TO WIN THE CASES IN WHICH HE PROFFERED OPINIONS FOR THE CROWN/POLICE.

HOW COULD IT BE OTHERWISE?

THE IRONY HERE IS THAT WITH RESPECT TO THE MYTH OF THE OBJECTIVE EXPERT - DR. SMITH IS THE ONLY "MEDICOLEGAL EXPERT" TELLING THE TRUTH ABOUT HOW THE EXPERT OPINION BUSINESS WORKS IN ONTARIO."

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One of our readers put the spot-light on the objectivity of experts in
Ontario's courts in a letter bearing the heading, "The fallacy of the
non-partisan medico-legal expert who acts as a "friend of the court"

I am presenting this letter for the benefit of all of our readers with
the writer's consent. Thanks Brian!

"Ontario courts both criminal and civil, the AG, the crown, plaintiff
lawyers and defence lawyers, insurers and other litigants with deep
pockets, etc. all want the public to believe that medical experts who
proffer expert testimony are merely serving as "friends of the court,"the letter begins;

"That is to say - the notion propagated for public consumption is that
these "experts" are disinterested parties who have no stake in who
wins the case but rather seek to assist the trier of fact with
"expert" opinion (of one sort or another) in specialty areas outside
the scope of knowledge of the judge," it continues;

"Put simply - "expert testimony is touted to be scientifically
objective and completely disinterested in who wins or loses the case.

Yet in contrast to this happy fiction, we have heard from Dr. Smith
who testified under oath that he was highly partisan and thought it
was his job/duty to help the crown and police "win" cases.

We have discovered that these experts in pathology denigrate one
another and compete among and between themselves trying to "win" cases
for whoever hires them - usually the crown with its limitless
tax-payer funded financial resources.

The same myths are fed to the public regarding the competitive
"experts" who opine in the civil justice context.

The insiders want us to believe that these medicolegal experts merely
convey the scientific, objective facts to the judge in a disinterested
and neutral manner.

But judges, plaintiff lawyers and defence lawyers are intricately
involved in the system and have no illusions about the competitive
aspects of proffering medical opinion in civil justice cases.

They know that winning means more referrals/cases from other insiders
(insurers, etc.) for more high-priced expert testimony.

They know that more referrals means more income and thus an
ever-expanding and highly lucrative IME (second opinions for sale)
business selling testimony...

The question is: why do they persist in propagating the myth of the
expert as a disinterested, scientifically objective friend of the court - when
they are well aware that the reality is otherwise?

Why do they foist this myth on the public when they are so often
confronted with partisan "experts" who come to court posing as
"disinterested" parties?

Bottom line - Judges and lawyers in both the civil and criminal
context ought not feign surprise that Dr.Smith (and a ton of others
just like him) thought his job was to strategically shape his expert
testimony so as to win the cases in which he proffered opinions for
the crown/police.

How could it be otherwise?

The irony here is that with respect to the myth of the objective
expert - Dr. Smith is the only "medicolegal expert" telling the truth
about how the expert opinion business works in Ontario."

Harold Levy...hlevy15@gmail.com;

Part Twenty-One: Think Dirty; Meadow's Legacy; (2)

THE DISCOURSE OF MUNCHAUSEN SYNDROME BY PROXY/ FABRICATED AND INDUCED ILLNESS IS AT THE CENTRE OF CONTENTION. IN PARTICULAR, CONCERN HAS ARISEN THAT CHILDREN’S MEDICAL NEEDS ARE BEING NEGLECTED WHEN THEIR CONDITIONS ARE MISDIAGNOSED AS CHILD ABUSE.

FROM "MISDIAGNOSIS OF CHILD ABUSE RELATED TO DELAY IN DIAGNOSING A PAEDIATRIC BRAIN TUMOUR," BY LYNNE WRENNALL;

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One of the dangers of theories that are not backed by science is that their application tends to cause unfortunate results.

An abstract posted on May 19, 2008, on an Internet site called "Libertas Acadmica," discusses this phenomenon in the context of Munchausen Syndrome By Proxy/fabricated and induced illness.

The study, by Lynne Wrennall, is called "Misdiagnosis of Child Abuse Related to Delay in Diagnosing a Paediatric Brain Tumor."

Wrennall is said to be connected with the Public Health Research Group, Criminology Programme, at School of Social Science, Liverpool John Moores University, Clarence Street, Liverpool, United Kingdom

"Conflicting opinion regarding the relative weight that should be allocated to the investigation of organic causes of child illness, compared to the pursuit of suspicions of child abuse, has generated considerable public debate," the abstract begins.

"The discourse of Munchausen Syndrome by Proxy/ Fabricated and Induced Illness is at the centre of contention," it continues.

"In particular, concern has arisen that children’s medical needs are being neglected when their conditions are misdiagnosed as child abuse.

This paper documents a case study in which the use of Child Protection procedures was linked to the belief that the child’s illness had “no organic cause.”

The case study is contextualised in a review of literature relevant to the diagnostic process.

The deployment of the Child Protection perspective resulted in significant delay in the diagnosis of the child’s brain tumour.

The child was ultimately found to be suffering from an optic chasm mass lesion involving the hypothalamus and the medial temporal regions, resulting in Diencephalic Syndrome.

The evidence in this case is that erring on the side of suspecting Munchausen Syndrome by Proxy/ Fabricated and Induced Illness, was not “erring on the side of the child.”

Several lessons need to be learned from the case.

The importance of ensuring that the Child Protection perspective does not displace adequate assessment of alternative explanations for the child’s condition is emphasised, as is the need for good communication in medical relationships.

Strategies involving empathy, mediation, negotiation and conflict resolution may provide a more appropriate and therapeutic alternative to the use of Child Protection procedures in cases where the diagnosis is contentious."

Harold Levy...hlevy15@gmail.com;

Part Twenty: Think Dirty: Munchausen Syndrome By Proxy: Dr. Roy Meadow's Legacy; (1);

“THE PARENTS ARE REFUSED THE OPPORTUNITY TO OBTAIN A SECOND MEDICAL OPINION AS THIS IS LABELLED ‘DOCTOR SHOPPING’, PART OF THE MSBP CHILD ABUSE PROFILE - EVEN THOUGH DOCTORS ARE ETHICALLY OBLIGED TO ALLOW IT AND IT IS A PATIENT'S RIGHT TO OBTAIN A SECOND MEDICAL OPINION. A MOTHER COULD BE DOING NOTHING WRONG, OTHER THAN SHOWING ANXIETY AND CARE FOR HER CHILD AND QUESTIONING DOCTORS ON THE CARE OF HER VERY SICK CHILD,” SHE SAID. “BEFORE LONG, SHE COULD BE ACCUSED OF CHILD ABUSE AND FACE CRIMINAL CHARGES. IT IS JUST LIKE THE WITCH HUNTS OF CENTURIES AGO THAT WERE BASED ON GUESSWORK.”

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"TO THIS WRITER, THE AUTHORITIES IN MUNCHAUSEN SYNDROME BY PROXY CASES HAVE A PUNITIVE APPROACH TOWARDS PARENTS AND THEIR CHILDREN, WHO NEED SUPPORT RATHER THAN PUNISHMENT AND SUSPICION.

COMPASSION IS SADLY LACKING.

WE NEED TO REVERSE THE WITCH-HUNT TREND AND STOP PERSECUTING ANXIOUS MOTHERS FOR CHALLENGING PROFESSIONAL OPINIONS, WHICH IN MEDICAL EYES, IS SO OFTEN SEEN AS CHALLENGING THEIR PROFESSIONAL STANDING."

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MICHAEL NOTT: AUTHOR OF THE MUNCHAUSEN SYNDROME BY PROXY WITCH HUNT;
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Writer Michael Nott demonstrates how the Munchausen Syndrome by Proxy developed by Sir Roy Meadow - and still heralded by many professionals throughout the world - has left some parents afraid to take their children to the doctor.

As is demonstrated by the following article , published on May 24, 2005, in "On-Line Opinion" - an Australian e-journal of social and political debate, Nott is an unabashed advocate for mothers accused of Munchausen Syndrome (factitious illness) by proxy.

"Consider this," the article entitled "The Munchausen Syndrome by Proxy Witch Hunt" begins.

"If you are a mother with a young child who has a very difficult-to-diagnose illness, you could find yourself looking down the aggressive barrel of a child protection agency," it continues;

"They could take your child into foster care, and the courts could allow you only very limited supervised contact with your child again, if at all.

There is no evidence that you have caused the child's illness.

Often the children at risk are very sick but a parent may have challenged a doctor's medical treatment.

Such a scene is happening in a number of countries, including Australia, Germany, New Zealand, UK and the US.

In some cases it is happening without evidence, driven by the speculative, circumstantial and prejudicial, much the same way as the witch hunts of old.

It follows on from the Munchausen Syndrome by Proxy (MSBP) theory introduced by British pediatrician, Professor Sir Roy Meadow (Lancet in 1977), also known as "factitious illness", "pediatric falsification disorder" and similar terms.

Named after the 18th century German figure Baron von Münchhausen, famous for his "tall stories", Munchausen Syndrome is where one is alleged to be causing problems in oneself, e.g., self harm, or presenting oneself at hospital too many times.

Munchausen Syndrome by Proxy is where one is alleged to be causing problems in another person, usually one's child.

In most cases, the mother - as the usual care-giver - is accused. I write as an advocate for mothers accused of Munchausen Syndrome by Proxy.

The MSBP theory has found favour in powerful sections of the medical profession, child protection, academia, law enforcement and the judiciary.

According to medical sociologist Dr Helen Hayward-Brown it has become a nightmare waiting on the doorstep of every family with a sick child.

Hayward-Brown was awarded her doctorate for investigating false allegations of MSPB, when many of her case studies were based in Australia.

“Ordinary mothers and fathers are being accused of child abuse because their children have an illness that some pediatricians cannot diagnose, or (because) the parents strongly question the doctor over the child's treatment,” she said.

“The parents are refused the opportunity to obtain a second medical opinion as this is labelled ‘doctor shopping’, part of the MSBP child abuse profile - even though doctors are ethically obliged to allow it and it is a patient's right to obtain a second medical opinion. A mother could be doing nothing wrong, other than showing anxiety and care for her child and questioning doctors on the care of her very sick child,” she said. “Before long, she could be accused of child abuse and face criminal charges. It is just like the witch hunts of centuries ago that were based on guesswork.”

MSBP is based on a "profile" or label that allegedly indicates the mother's behaviour.

Such a profile includes the mother who shows too much interest in medical procedures, paradoxically taking no interest in the child's medical care, and the mother who passively accepts everything but also seeks attention by going to the media.

Hayward-Brown said that generally an accused mother will be told she has little hope of her children being returned unless she confesses to MSBP.

Charles Pragnell, an expert British defence witness in child protection, now based in Melbourne, Australia, said that the labelling of a carer, usually the mother, with child abuse prevents proper investigation.

Bringing legal action or making a complaint against a doctor is thereby effectively stopped.

Hayward-Brown said, “The MSBP profile used by doctors contains paradoxes that make it very difficult, almost impossible, for mothers to prove their innocence. For example, being an over-protective parent is part of the MSBP profile, but so is being a negligent parent."

Child protection agencies often took the view that a mother must be guilty and failed to undertake appropriate investigations.

"It does not matter if it is called a disorder, behaviour or syndrome. It does not matter if it is seen to be psychiatric or pediatric. The outcome is the same," she said.

The legitimacy of the MSBP theory is now undergoing intense scrutiny worldwide.

Challengers allege a lack of scientific integrity with highly questionable support literature in medical journals; there is concern that a minority of influential members of the medical profession continue its use.

Pragnell made the point that Meadow’s MSBP research had not been subject to peer review.

Meadow is facing professional misconduct charges (June 2005) being brought by the British General Medical Council, concerning alleged misleading and contradictory evidence.

The Royal Statistical Society publicly condemned (October 23, 2001) his statistical methodology, relating to his evidence in the Sally Clark case.

A supporter, Professor David Southall, has also been found guilty of serious professional misconduct regarding a child abuse case.

The UK Government has ordered official reviews of both criminal and civil cases involving Meadow's MSBP and cot death theories.

The Opposition has called for a public inquiry.

In the US, Howard Fishman, a former education director at the Harvard Medical School's psychiatry department, commented, “The child abuse industry has devoted itself to the removal of children from their homes based on spectral evidence, phantom disorders and fanciful modes of purported abuse that should be assigned to the trash bin of junk science”.

Evidence involving the label or profile of MSBP has been rejected by Australian courts.

For example, the Queensland Court of Appeal (R v LM [2004] QCA 192), ruled it prejudicial and inadmissible.

The South Australian Supreme Court (S4118, 1993) ruled that, although a pediatrician, Professor David Southall's MSBP testimony could only be regarded as a lay person's opinion.

Meadow's cot death theory - that one child death in the same family is a tragedy, two suspicious and three murder - has been rejected by the UK Court of Appeal (R v Angela Cannings [2004] EWCA Crim. 01) and in Tennessee, US, (2003, no. 99-D-2836).

Judicial comments in the UK Clark case (R v Sally Clark [2003] 200203824 Y3) were that Meadow's medical and statistical evidence on cot deaths in the case was "wrong" and "grossly overstated".

The Queensland Court of Appeal (R v LM [2004] QCA 192), in a unanimous judgment, stated MSBP (or factitious disorder by proxy) was not a recognised psychiatric disorder or mental illness in the American Psychiatric Association's Diagnostic and Statistical Manual (DSM IV).

The court went on to say that MSBP had no agreed sets of symptoms or signs that allowed it to be classified into a recognised psychiatric diagnostic system, it was not a recognised medical condition, disorder or syndrome, and the court excluded evidence from a psychiatrist as "extremely prejudicial".

Justice Holmes noted that the MSBP argument was inherently circular and did nothing to prove criminal conduct.

The Australian Capital Territory's Director of Public Prosecutions, Richard Refshauge, said the QCA decision on MSBP made “clear that if a woman is to be prosecuted for harming her children, it is not enough to put a label on it; facts are required to justify the case”.

"By labelling the woman in this way with MSBP or factitious illness by proxy you are saying the woman is guilty, as the label creates the guilt … People are not convicted for having a syndrome or a particular behaviour; they are convicted for the illegal acts that they do."

The QCA decision resulted from a case in a criminal court, where guilt must be established beyond reasonable doubt, but Munchausen Syndrome by Proxy is frequently used in care proceedings in the children's court where a decision rests on the degree of probability and does not necessarily abide by the rules of evidence.

According to Pragnell, this is the heart of the problem.

He said that in care proceedings, hearsay evidence was admissible, while such evidence would be inadmissible in criminal matters.

Therefore, in care cases, the cards were heavily stacked against mothers when added to any balance-of-probability decision.

He suggested care courts should be inquisitorial, aimed at establishing what has happened and what the outcome should be.

As Hayward-Brown pointed out, parents had limited finances and were often denied government legal aid and support as opposed to the authorities, which appeared to have unlimited funds.

The NSW child protection agency, Department of Community Services (DOCS), has confirmed it is "precluded" by law from using allegations of MSBP as the basis for the removal of a child.

Yet, the writer believes it has used MSBP allegations for many years as the central allegation in child protection proceedings.

Written statements to this writer from DOCS (September 10, 2003 and September 24, 2003) suggest that DOCS was in breach of its own legislation when it stated the “Children and Young Persons (Care and Protection) Act 1998 (Section 71, Subsection 2) precludes DOCS from taking any medical condition of a parent or carer into account when making a child protection decision”.

The Director-General of DOCS, Dr Neil Shepherd, declined to be interviewed for this article.

Pragnell claims some medical authorities show scant regard for legal requirements.

"This is causing immense harm to the status of the medical profession and public trust in physicians, as relatives and friends of affected families are alarmed and angered by the needless and unwarranted removal of children and, in some cases, the imprisonment of innocent mothers," he said.

Earl Howe reported although the UK Government was looking at a restricted group of court cases where the verdict may have gone the wrong way, “It is disappointing that the Government is not addressing the MSBP or factitious illness by proxy diagnosis that is the core of the problem”.

In NSW, Victoria and Queensland, MSBP allegations are still being made against mothers. According to Hayward-Brown, there is no indication of any body in NSW or Australia showing concern about the need to review current and previous cases involving Meadow's evidence, diagnoses and theories.

Australia's Federal Government, through its Institute of Family Studies and its Child Protection Clearing House, still recognises MSBP as a valid "diagnosis".

Similarly, the Royal Australasian College of Physicians has made use of Meadow's theories on its website.

Hayward-Brown stated that medical professionals were afraid to speak out publicly against their colleagues for fear of marginalisation and persecution in a small medical community. "This problem is not going to go away,” she said.

Legal firms and lawyers had refused to take on MSBP cases as they were too controversial and, "legal aid has been refused to MSBP cases by legal aid bodies in both NSW and Victoria on the grounds that they will not succeed," she said.

This had also occurred in the UK. Cases were often long, complex and involved expensive medical witnesses.

Such a denial of legal representation had been found by the European Court of Human Rights to be a breach of human rights in an MSBP case (P, C & S v the UK; no. 56547/00; 2002) where the UK Government was found guilty and fined.

This same court found that it was a breach of human rights to remove a child at birth due to a previous allegation of MSBP.

"No one seems to want to take responsibility over MSBP allegations: the doctors and hospitals, DOCS and the health department keep blaming each other,”Hayward-Brown said.

Ministers’offices and opposition health spokespeople were quiet on the issues.

In a statement to this writer (July 26, 2004), the NSW Commissioner for Children and Young People, Gillian Calvert, said there was no consensus among the professionals on MSBP.

Calvert described MSBP as "a complicated and difficult diagnosis with significant differences of opinion among medical and legal professionals: there are some medical experts who support and diagnose the syndrome and those who dispute its existence".

It appears the commission has decided not to take any firm action or use its legislative power to order an inquiry.

The commission has also declined to answer questions on whether it is "irresponsible and careless" to allow the current situation to continue.

The commission's parliamentary committee head, Barbara Perry, declined to be interviewed.

NSW Police has also declined to release information on its use of Meadow, Southall and a US MSBP proponent.

The NSW Solicitor-General's office also refused to respond.

Hayward-Brown said she was concerned that the diagnosis of MSBP was not being properly addressed in Australia: “No one wants to change the status quo and upset the careers of many doctors and social workers.”

She thought authorities could also be reluctant to review cases because of the possibility of negligence claims.

Pragnell maintains that child protection systems are deeply flawed, erratic and dysfunctional: “There is now a worldwide storm brewing regarding child protection injustices,” he said. "And governments across the globe should take notice as the current situation will no longer be tolerated."

To this writer, the authorities in Munchausen Syndrome by Proxy cases have a punitive approach towards parents and their children, who need support rather than punishment and suspicion.

Compassion is sadly lacking.

We need to reverse the witch-hunt trend and stop persecuting anxious mothers for challenging professional opinions, which in medical eyes, is so often seen as challenging their professional standing."

Harold Levy...hlevy15@gmail.com;