As the expert for the mothers in the 2002 'MMR' case (which was, in fact, about all vaccinations) my evidence was slated by the trial judge. The appeal judges called it 'junk science'.
The expert for the fathers was Dr Steven Conway, a Consultant Paediatrician and Lead Physician at St James' Hospital, Leeds with a special interest in infectious diseases and immunology.
The expert appointed for the children was Professor Simon Kroll, Professor of Paediatrics at Imperial College, St Mary's Hospital with a special interest in children's infectious diseases. Both are author or co-author of some 100 medical papers and are, or have been, members of the Joint Committee on Vaccination and Immunisation (which is supposed to be an independent body advising the Department of Health) and of the Royal College of Paediatrics and Child Health Standing Committee on Immunisation and Infectious Diseases.
The
anonymised transcripts of the proceedings in 2002 and the written
reports of Dr Conway and Professor Kroll were released for public use
in the GMC hearing 2007
In the judge's opinion, "both were anxious to accommodate the views of both sets of parents", and they "spoke from no doctrinal bias nor from an inclination to support the views of the Department of Health".
As a GP and Homoeopath who had been researching the vaccination issue since 1994, I was not rated so highly. In particular, I was criticised for not specifically stating, in the large body of evidence that I had accumulated regarding the poor efficacy and safety of vaccines, that most of the authors of the papers from which I quoted recommended vaccination. This was certainly not intentional.
In the absence of any clear, open, objective and well designed studies on vaccination safety, the observations and recommendations that I presented to the court were made by carefully sifting through what studies were published in refereed medical journals and other sources; in particular looking at the methods and the results of the studies, rather than the conclusions which often did not reflect the findings. Analysing the data in this way raised serious questions about the usefulness and advisability of vaccination. It was, however, true that the authors of the papers from which I quoted, almost without exception, concluded by urging vaccination or repeated courses of vaccinations.
Counsel for the fathers suggested that I did not fulfil my duty to the court as an expert witness (based on the requirements of the Civil Procedure Rules Part 35) and the judge concluded that I had allowed my "deeply held feelings on the subject of vaccination" to overrule the duty I owed to the court. I dispute this and believe that I fulfilled the requirements of the above rules:
- I helped the court on matters within my expertise as stated in my curriculum vitae, submitted before I was engaged.
- This overrode any obligation to the person from whom I received instructions or by whom I was to be paid.
- My expert evidence was an independent product and was absolutely uninfluenced by the pressures of litigation.
- I gave an objective and unbiased opinion. If I did not state every case where there was a differing view to those I presented, it is because such views are widely available and were already tabled by the other experts.
- In terms of indicating questions or issues falling outside of my expertise or saying that I was unable to reach a definite opinion because I had insufficient information - I think all the experts were guilty of this. The judge himself quoted a study brought to his attention by the two other experts, which he used to satisfy himself that the pertussis vaccine was safe, 'it is sufficient to note that in one 7-year study of over 130,000 children receiving 3 doses of DTP and a similar number completing courses of DT, the DTP vaccine could not be blamed unequivocally for any neurological disease. Concluding that the DTP vaccine is safe based on this study seems extremely like reaching a definitive opinion based on insufficient information.
- If after producing my report, if I had changed my view on any material matter I would have communicated this without delay.
The judge, indeed, commented on what he called my 'disarming frankness'. Perhaps he is used to people being more devious. Why would he expect an expert witness to do anything other than to answer questions honestly?
In reflecting upon this case it appears to me that there were two separate points at issue:
1 The Judge's Weighting Of Issues
2The Approach Of The Mothers Team
The judge decided to make this case an issue of vaccination and not for whom it is in the best interest of the child to make day to day decisions about their wellbeing and welfare - usually regarded as being the parent with day to day care; for the sake of support, continuity and the right to family life.
Vaccination is not compulsory in this country. Compulsory vaccination laws were repealed, and with good reason, earlier on in the last century, just to avoid the awful occurrences of children's being dragged away screaming from their parents by police officers or officers of the court to be forcibly vaccinated, or being taken away from their parents altogether and put into local authority care because the parents refused vaccination.
If the Judge were deciding on another issue, for example, if an absent parent went to court for an order to compel the parent with care to send the child to a prestigious boarding school with all amenities, instead of the rather run-down local council school that the child was currently attending; would the judge go into great detail as to the merits of the various forms of schooling on the child's educational health, or would the judge not rather rule in favour of the parent with care making the decision for the above mentioned reasons?
To be more contentious - some people might argue that no matter how good the academic provision, nothing would compensate for the emotional trauma of sending a child to boarding school - what if the parent with care wanted to send the child to boarding school and the absent parent disagreed and sought an order banning it. On what basis would the judge decide? To the best of my knowledge there was just such a case in this country where the parent with care - a father - sent his child to a boarding school without even discussing it with the mother who then brought the case. The courts did not overturn the father's decision. It was merely suggested that he should have discussed it with the mother first.
Why did the judge decide to make the issue in this case vaccination and not the aforementioned factors? Was there inherent bias on his part because vaccination was involved?
This is not the first case of its kind. Another case occurred in the South of England a few years previously. It was not referred to the High Court and it was not publicised. The child's best interests were deemed to be served by allowing the parent with care to make the decision - which was, not to vaccinate.
It would be unfortunate and not a fair trial if publicity were to have swayed the prioritising of issues and the learned judge's opinion in this case.
Regarding weighting of the evidence, the judge said that he was very impressed by the numerous committees of which Dr Conway and Professor Kroll were members and regarded them as leading experts in their field. When considering a view that is an establishment view and one which is not, it is unsurprising that people who support the establishment view are on prestigious establishment committees, they are, after all, the very committees that form the establishment view. That those who believe otherwise are not, is, unfortunately, axiomatic. Goering and Himmler were undoubtedly on many authoritative and prestigious committees in Nazi Germany, but most people would not regard this as qualifying them to give an impartial opinion on the pros and cons of Hitler's 'Final Solution' today.
The judge gave great weight to what Dr Conway said were my "selective quotations" but, to give one example regarding polio: Dr Conway said that my observation that outbreaks of polio occurred in Albania after National Immunization Days (1) was untrue because the authors of the study reported a low incidence in young children and a relatively high incidence in babies below the age of six months who were born after the National Immunization Days - as if these babies were not vaccinated. But table 2 of this study shows that six of the ten cases of paralytic polio below the age of six months had had one or two doses of polio vaccine. The discussion specifically comments: "as some of these (less than six month old) patients were vaccinated only according to the routine schedule, this suggested that during an epidemic routine immunization is less effective". Later on (top of next column) it says "Neutralizing antibody titres to poliovirus types 2 and 3, in addition to serotype 1, were high overall among Albanian patients diagnosed with Acute Flaccid Paralysis (paralytic polio), which is apparently in contrast to the hypothesis that poor vaccination history may have been a major factor in the outbreak". Why would an intelligent person like Dr Conway selectively quote from the paper in a way as to infer that I was being incompetent or untruthful if he were not seeking more to obfuscate the situation and to support his own agenda than to clarify it. Certainly the authors conclude by urging vaccination, but this, as we have established, is to be expected.
The Judge took me to task for making a comment, during cross examination, for which there were no medical papers to support my view, namely; if a parent does not vaccinate a child and is completely terrified each time the child gets ill, that s/he is going to die of one of the diseases that s/he hasn't been vaccinated against this terror could have a deleterious effect on the child's immune and the child is more likely than the child of a confident parent to have a severe form of the disease. (In such cases I may even suggest that the parent and child might be better off vaccinating - with all its attendant problems - and being happy, than not vaccinating and being terrified) I have no papers in medical journals to back me up on this - although there is plenty written on the subject. It is a well-known fact that the most important forces to which human beings are subject - emotions- cannot be measured nor quantified in a scientific manner. You can measure pulse rate and the way that your hair stands on end when you are scared but you cannot measure fear. This does not mean that it does not exist nor that it does not have an effect on the immune system. There is no objective, 'scientific' way of measuring love, yet we have all felt it (hopefully). As the great Albert Einstein said: "Not everything than counts can be counted; and not everything that can be counted counts".
The Judge praised the opinions of Dr Conway and Professor Kroll for being based on learning and informed research, and later quoted Professor Kroll 'Equally before 1988 when the MMR jab was introduced, research shows that more than half of the acute measles' death (sic) occurred in previously healthy children who had not been immunised'. There is no research that shows this. It is a quotation from the 'Immunisation against Infectious Diseases Handbook' produced by the Department of Health (1996) with no medical evidence to support it. The paper on which it is based (2) specifically says, "No attempt was made to establish vaccination status". My repeated letters and phone calls between March and July 1999 to the office of Dr David Salisbury, Head of Immunisation at the Department of Health to find out the source of the information on vaccination status and the additional data for 1983 (the end of the study period in the paper) and 1988 produced a stony silence. In October of that year I wrote asking Alan Milburn, the then Secretary of State for Health for the same information. I am still waiting for a reply. This was catalogued in one of my statements. When I presented opinions not based on medical papers I was criticised by the judge but when the other experts did the same, they were not. This was not even handed.
The judge quoted Dr Conway's dismissal of my views on the severity of measles infection as relying 'upon questionnaires from a biased parental viewpoint'. It is true that the Steiner community in Gloucester (3), who were studied after a large outbreak of measles in the 1990's, were generally confident in the ability of their own and their children's bodies and minds to cope with infectious diseases. However the judge quoted Dr Conway's hospital based study on the effects of measles and whooping cough (4) as definitively showing how serious these diseases are. I would argue that the answers from Dr Conway's hospital questionnaires suffer from at least the same bias but in the opposite direction to the Steiner questionnaires because the majority of children with these diseases do not go to hospital. This was not even handed.
It seemed that the judge, whose task it was to spot what he regarded as inaccurate opinions, was more adept at doing so when the view differed from the generally accepted view, and, perhaps, even his own.
The
vaccination issue was not pursued by Counsel for the mothers for fear
that the Judge would not take criticism of vaccination seriously, so
I was only examined on my approach to advising parents.
This seemed to be a reasonable view but was to have unfortunate consequences because of the adversarial nature of the court system.
Certainly, having not observed the workings of such a court before, I was rather taken aback by the rudeness and personal comments made by Dr Conway in his answer to my first statement. I can see now that it was part of a basic strategy: if the witness can be discredited then what they say will be discounted. It explains to me also why replies to Dr Andrew Wakefield's comments or publications always occasion such an outpouring of scorn and personal abuse from the Department of Health and its spokespersons as opposed to scientific criticism of his findings. I also noticed that Professor Kroll who had not acted as an expert witness before did not use such tactics. I would be surprised if he did even with greater court experience. I regard him as a man of great integrity.
The fathers' barrister, gave a highly skilled performance and certainly did an admirable job in finding any ambiguities or inconsistencies in my statements and then implying that they had been placed there, as such, with intent to deceive.
For of the aforementioned reasons, counsel for the mothers did not do likewise. This meant that the judge, who had to form an opinion on the reliability and integrity of experts by seeing which one could be made to appear least stupid in court, only had the opportunity of seeing me demolished but not the other two; although Mr Cohen did a very thorough job even with the Professor Kroll, and all because he had suggested that not all vaccines were necessary and not all disease risks were the same, as opposed to Dr Conway, the fathers' expert who recommended blanket vaccination of both children with all vaccines.
I am reminded of a conversation that I had with Professor Collier, Professor of Pharmacology and editor of the 'Drugs and Therapeutics Bulletin' that was so slated by Dr Conway in his evidence. He said that he had been used as an expert witness in numerous cases but had given up doing it 'because it was all about scoring points and no-one was interested in the truth'. I couldn't agree more.
In summary, I think that issues with this case are: the judge's uneven weighing of the matter, the external pressure from all the publicity turning the focus of the case onto what was not the main issue, and a failure of strategy on the part of counsel for the mothers, which had the bad effect on the judge of hearing only the mothers' expert destructively cross examined at length and not the fathers' or children's experts.
The European Court of Human Rights Act (1998), article two establishes the right to a fair trial, which I think did not happen in this case. Article eight establishes the right to respect for private and family life, which I do not think has occurred here, with the judge acting in loco parentis to impose a non compulsory intervention when there were two parents for each child present in their own loco and the parents with day to day care of the nuclear family being stripped of their ability to decide what was best for their child, but none the less being expected to continue to provide for the child's day to day care. There was also no mention in the summing up of the precedent set by the previous trial on this issue which was decided differently.
It is also notable that the judge in this case effectively ruled on the safety of the MMR vaccine, thus prejudicing the outcome of the civil action that was due to be heard in April 2004 but which has since lost its public funding.
The workings of the legal system are interesting to observe. Having made the case to the judge that I did not fulfil the criteria for an expert witness, Jonathan Cohen QC, counsel for the fathers, in his article in the Family Law Journal (September 2003) was, nonetheless, happy to highlight that "it was not the case of the mothers' expert that there was any persuasive link between the MMR jab and autism". This was derived from my statement in which I said:
"I have specifically not mentioned autism in relation to the MMR vaccination. Much has been said on the matter and it is the subject of a large pending legal case. Many of the arguments as to whether autism has increased since the introduction of the MMR vaccine rely on sophisticated statistical re-analyses of studies that were not set up to look specifically at whether there is a link or not. Autism, however, was not described as a disease until the 1950s when major vaccination programmes were started and as these have become more universal, so has autism. If there is a link between MMR and autism it is certainly not the only vaccine which might be a culprit."
As Shakespeare says in 'The Merchant of Venice', "the devil can cite scripture for his purpose'"
Perhaps it was not so much a case of 'junk science' as 'junk justice'
References
(1) Fiore L,Genovese D, Diamanti E, Catone S et al, Antigenic and molecular characteristics of wild type 1 poliovirus causiing outbreaks of poliomyelitis in Albania and neighboring countries in 1996 J Clin Microbiol 1998;36:1912-18
(2) CL, Miller Deaths from measles in England and Wales, 1970-83, BMJ 1985;290:443-4
(3) Duffell E, Attitudes of parents towards measles and immunisation after a measles outbreak in an anthroposophical community, J Epidemiological Community Health 2001;55:685-6
(4) Conway SP, Phillips RR, Morbidity in whooping cough and measles, Arch Dis Child, 1989;64:1442-1445
A full account of the judgement can be found on Lawtel at AC0105218 and on the Balii websiteat EWHC-FAM-2003-1376 (Re Vaccination/MMR litigation: A v B; D v E [2003]
Updated September 2007
© Dr Jayne L.M. Donegan MBBS DRCOG DFFP DCH MRCGP MFHom
Telephone/Fax 0044 (0)20 8632 1634
Email: jaynelmdonegan@yahoo.com Website: www.jayne-donegan.co.uk