298. Another Medical Martyr, Dr. Waney Squier (Part Three. The Appeal to the High Court)

Appeal to the High Court

It is no surprise that Dr.Squier appealed against this decision of the General Medical Council (GMC) in the High Court. The hearing was held in October 2016 and the findings are in this report (1). From Dr. Squier’s perspective, the outcome was something of a mixed bag. The Medical Practitioners’ Tribunal (MPT), which acted on behalf of the GMC was severely criticised but some of the charges against Dr. Squier were upheld. In the introduction, the state of play on Non-accidental Head Injury (NAHI) (an alternative term for SBS) was explained. When Dr. Squier first started work in this field, the opinion of the great majority of those who practised in fields relevant to it – neurosurgeons, radiologists, ophthamologists/ophthalmic pathologists, neuropathologists and forensic pathologists – was that, even in the absence of any sign of other injury, the coincidence of a triad of conditions, subdural haemorrhage, retinal haemorrhage and encephalopathy, was at least strongly indicative NAHI. Dr. Squier initially shared the majority view but, by about 2002, came to doubt it. Majority opinion has remained essentially the same. She, as she has always acknowledged, is in the minority.

During the case the evidence presented by Dr. Squier in several different cases together with the conclusions and procedures of the MPT were subject to detailed examination.

The witnesses

The judge noted that the MPT was not favourably impressed by some of the evidence presented by witnesses called in support of Dr. Squier. In particular, he referred to the comment on the evidence from Michael Birnbaum QC:

“The Tribunal considered that at times Mr Birnbaum appeared somewhat vague. It believed that he lacked some credibility.”

The judge interpreted this to mean that this evidence was not worthy of belief and concluded there was no foundation for this stance. Although this was not of any consequence it was:

“simply the first of a number of unsustainable findings of greater significance.”

The principle finding about Dr. Squier’s evidence was in effect that she had committed an offence of perjury. The judge ruled that:

“This finding was unjust because of a serious irregularity in the proceedings before it.”

This relates to the MPT’s action after Dr. Squier had established her right not to answer a question, which was a clear failure to follow proper procedures. Here is the relevant extract from the report:

“Although the MPT did not expressly endorse the legal assessor’s advice, they did not say that they did not accept it and can be taken to have done so. She was, therefore, told unequivocally that if she chose not to answer the questions because “she feels it might prejudice her later” in relation to criminal or disciplinary proceedings, her choice could not be held against her and would have no consequence adverse to her. Having exercised that right, she was entitled to assume that she would not be found to have lied – committed an act of perjury – as a result of doing so. The MPT gave no advance warning that they might adopt this course. This was a serious irregularity. It produced an unjust conclusion on a critical question.”

The decision

The judge ruled that Dr. Squier’s name should be restored to the medical register and that the MPT was not entitled to find that her actions and omissions were misleading or deliberately misleading.

However he also found that she had gone beyond her expertise and misrepresented some research, but said her views were honestly held. He ruled that she should not be allowed to give expert evidence in court for three years (2).

Sue Luttner who has a blog entitled “On Shaken Baby” has commented on the judgment (3). In particular she is puzzled by the institutional insistence that Dr. Squier gave evidence outside her expertise. While Justice Mitting recognised that medical specialists evaluating the triad of symptoms for NADI would necessarily be expressing opinions outside their own disciplines, but he still seemed to agree with the tribunal that Dr. Squier had crossed a line. In other words it is one law for Dr. Squier and another one for her critics. Here is what the judge says about the boundaries of expertise:

“The thrust of the GMC’s criticism of her was that, despite that, she went on to challenge their evidence when there was no basis upon which she properly could. A great deal of evidence was given before the MPT, principally by Professor Smith, about the limits of expertise of a neuropathologist and what she could properly say about other disciplines. With one qualification, the MPT were entitled to accept that evidence and act upon it. The qualification is that, when the triad fell to be considered, any specialist, with the possible exception of a forensic pathologist, who supported or doubted the triad as indicative of NAHI, would be bound to be expressing an opinion outside his specialism. There can be no proper criticism of a neuropathologist, neuroradiologist or ophthalmologist/ophthalmic pathologist for explaining why he supports or doubts the majority view and in doing so, expresses a view about symptoms or pathological findings outside his own discipline. It is neither improper nor professional misconduct for an expert in one specialism to do so. The boundary line between a proper explanation of support or doubt and trespassing impermissibly outside the expertise of the witness is imprecise and difficult to identify in any particular case. It would have been better if the MPT had acknowledged that difficulty; but, with that qualification, there is and can be no justified criticism of its conclusions about the limits of Dr. Squier’s expertise.”

Conclusion

It was clear that it is extremely difficult to define the limits of a person’s expertise. In fact I would argue that it is impossible. For a start, what exactly is meant by expertise? An individual can have practical skills to do specific tasks such as car maintenance or brain surgery. There are ways of assessing the degree of skill. Is this the same as expertise, which is probably more likely to be concerned with specialised knowledge and its application? Virtually all areas of nutrition or medicine embrace many different disciplines. In my work I deal with chemistry, biochemistry, food science, food technology, psychology and economics to mention just a few. Most of this has been acquired by personal study over many years since I graduated. How on earth does anyone work out my expertise in each one of these? How much knowledge is needed before one is considered to have expertise? These are all imponderables and this whole approach is an absolute nonsense. The practice, which seems to have worked very well over the years is that an “expert witness” establishes credibility with one’s peers. Then any evidence presented to the court is subject to examination. In this particular series of cases, it seems to me that although the High Court judge rejected much of the MPT conclusions, he accepted the rather dubious and convoluted logic on the boundaries of expertise.

References

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