It's about the money, stupid

It's about the money, stupid!

The Telegraph has published a story about Leigh Day's involvement in the Al-Sweady Inquiry, where it was concluded that most of the claims were deliberate lies. It mentioned that Leigh Day are one of the major opponents to the Saatchi Bill. 

Some bill opponents have proclaimed that this is unfair, as the Al-Sweady Inquiry is a different matter altogether. I disagree. The point being is that lawyers get paid for litigation. In some cases, as the Al-Sweady Inquiry demonstrates, solicitors seem to fail to do some basic vetting. They ought to be acting as officers of the court, the champions of the wronged that they claim to be. Sometimes they fall well short. 

The claims of medical negligence lawyers that only costly litigation is capable of deciding what is good medical practice is self-serving. It also contradicts their claims to only sue "bad doctors". What the Saatchi Bill will do is stop speculative law suits, so it will hit medical negligence lawyers in their pockets. It is all about money. Something which Leigh Day and others make in spades, with no sign of this activity improving patient care one iota.

Nigel Poole QC illustrates the need for the Saatchi Bill quite neatly

Nigel Poole QC illustrates the need for the Saatchi Bill quite neatly

I have made the point previously that the medical negligence lawyers who disagree with the Saatchi Bill often also strongly believe that they and their colleagues only litigate against doctors that have harmed their patients, that there is no such thing as "defensive medicine", and that nothing needs to change in the medico-legal milieu in the UK. Everything is hunky-dory, doctors have to be kept in check by the lawyers, and any changes will lead to disaster for patients.

Many doctors will find this quite incredible, and one of the leading opponents of the Saatchi Bill, Nigel Poole QC, illustrates the reality of medical negligence quite neatly. In doing so, he destroys many of his arguments against the Saatch Bill. If even standard clinical practice is litigated by medical negligence lawyers, then it defies all logic that innovations will not be the subject of legal action. 

The case of Davies v UHNS is a striking demonstration of how medical negligence lawyers can and do pursue legal action even when there is no reasonable question that the clinical management given at the time was entirely appropriate. The application of the Bolitho test was straightforward, yet the trust and doctors were dragged through the courts. Despite the protestations of the medical negligence lawyers, they don't just sue the "bad doctors". They litigate because that is how they earn their money. Hence they argue that only the courts should be deciding what is good medical practice and what isn't. Even though they then argue that lawyers don't decide what good medical practice is, but doctors. Nigel Poole QC is no exception, and this makes my point. Thank you, Nigel.

Genes and behaviour - exciting new science or neurobollocks?

Genes and behaviour - exciting new science or neurobollocks?

More research has been published on MAOA and another gene HTR2B and their link to violence in Finnish prison inmates.  http://www.economist.com/news/science-and-technology/21629223-more-evidence-certain-versions-some-genes-can-encourage-violence-next?fsrc=scn/tw/te/pe/nextcanidate

MAOA was originally linked to violence through a Dutch family with several members incarcerated for violent crime who had essentially a non-active variant. The effect of the common variants of MAOA is much less dramatic, and the heritability of criminal behaviour generally is low. This should not be unexpected.

Do these revelations herald a new approach to the violent criminal? After all, it is common knowledge that some people are more volatile than others - indeed this variation is recognized by the common law, only to be dismissed as a basis for altering the threshold for provocation. Potentially genetic testing could be used as the basis for altering the test for loss of control (the statutory replacement for provocation) from objective to subjective.

The most likely outcome is that these tests might be used in sentencing hearings. Even there the potential is that this could be a double-edged sword. Judges might considered that these individuals either need more deterrence, or need to be kept out of society. Lawyers should tread carefully.

More egregious claims from Saatchi bill opponents

More egregious claims from Saatchi bill opponents

For all the claims by Saatchi Bill opponents about PR and spin, they seem very happy to engage in it themselves. Lawyers re-Tweeting claims that are legal nonsense seems rather unethical, but they seem content to implicitly endorse the claim by Dr David Nicholl that the Saatchi Bill would leave medics open to charges of "wilful neglect" for failing to provide any untried, even wacky, treatments their patients demand. https://www.opendemocracy.net/ournhs/david-nicholl/saatchi%27s-%27medical-innovation-bill%27-will-benefit-lawyers-and-charlatans-not-pat#.VEevO8uIwrI.twitter

His point about the dangers of untried treatments also applies to research trials. There have been several disastrous trials of medicines which have resulted in serious illness - take for example the testing of TGH1412. 

The Saatchi Bill is nothing to do with the requirement for good clinical research after all - that has been made very clear. Dr Nicholl also claims clinical trials were expedited for situations like the Ebola epidemic. He ignores the compassionate use of untested medicine ZMapp for some victims of Ebola, which illustrates the need for the use of innovative treatments. 

Stating that the infrastructure for clinical trials needs to be improved is rather missing the point. There are many rare disorders (which are common collectively) where the administration of clinical trials with sufficient numbers is extremely difficult. Where there are no or very few treatment options available, innovation rather than waiting for the ponderous machine of the PRCT to grind into action is still the ethical way to proceed. Putting the faceless interests of "science" before concern for patients is not really good ethics. 

The Saatchi Bill is about encouraging responsible innovation. The inference that it is a quack's charter cannot be sustained upon examination of the bill, which emphasizes the qualifier "responsible" or "responsibly" several times.

1 Responsible innovation

(1) The purpose of this Act is to encourage responsible innovation in medical

treatment (and accordingly to deter irresponsible innovation).

(2) It is not negligent for a doctor to depart from the existing range of accepted

medical treatments for a condition if the decision to do so is taken responsibly.

(3) For the purposes of taking a responsible decision to depart from the existing

range of accepted medical treatments for a condition, the doctor must in

particular—

(a) obtain the views of one or more appropriately qualified doctors in

relation to the proposed treatment,

(b) take full account of the views obtained under paragraph (a) (and do so

in a way in which any responsible doctor would be expected to take

account of such views),

(c) obtain any consents required by law to the carrying out of the proposed

treatment,

(d) consider—

(i) any opinions or requests expressed by or in relation to the

patient,

(ii) the risks and benefits that are, or can reasonably be expected to

be, associated with the proposed treatment, the treatments that

fall within the existing range of accepted medical treatments for

the condition, and not carrying out any of those treatments, and

(iii) any other matter that it is necessary for the doctor to consider in

order to reach a clinical judgement, and

(e) take such other steps as are necessary to secure that the decision is

made in a way which is accountable and transparent.

For the purposes of subsection (3)(a), a doctor is appropriately qualified if he

or she has appropriate expertise and experience in dealing with patients with

the condition in question.

(5) Nothing in this section permits a doctor to carry out treatment for the purposes

of research or for any purpose other than the best interests of the patient.

(6) In this Act—

(a) “doctor” means a registered medical practitioner;

(b) a reference to treatment of a condition includes a reference to its

management (and a reference to treatment includes inaction).

2 Effect on existing law

(1) Nothing in section 1 affects any rule of the common law to the effect that a

departure from the existing range of accepted medical treatments for a

condition is not negligent if supported by a responsible body of medical

opinion.

(2) Accordingly—

(a) where a doctor departs from the existing range of accepted medical

treatments for a condition, it is for the doctor to decide whether to do

so in accordance with section 1 or in reliance on any rule of the common

law referred to in subsection (1);

(b) a departure from the existing range of accepted medical treatments for

a condition is not negligent merely because the decision to depart from

that range of treatments was taken otherwise than in accordance with

section 1.

The anti-Saatchi bill campaign should explain why this bill is apparently a "quack's charter" rather than keep repeating their empty claims. This issue is too important to be submerged under a tide of unhelpful rhetoric. 

Polemic from anti-Saatchi Bill campaigners

Polemic from anti-Saatchi Bill campaigners

Interesting to see the polemic from some anti-Saatchi bill campaigners, which is getting ever more strident as the bill gets nearer and nearer to becoming law. Some of it is quite worrying, if easily dismissed.

The breakthrough announced in the treatment of spinal injuries was trumpeted as evidence that the Saatchi Bill is not needed. Let's have a think about that - the groundwork for this advance was done in the UK, yet the innovative treatment occurred in Poland? This is the same for several other tissue engineering advances. First tissue engineered trachea produced in Bristol. Implanted where? Spain.

The same applies for advances made wholly in other jurisdictions - what bearing can they possible have on the need for the Saatchi Bill in this jurisdiction? 

Another argument is that there's no evidence that fear of litigation inhibits innovation - yet in the next breath we're told fear of the current legal regime is vital to prevent quackery? So does litigation influence behaviour or not? 

There is plenty of evidence from doctors that they are inhibited from innovating. This demand for evidence is however symptomatic of a positivistic philosophy which doesn't fit with normative issues. It is true that if doctors perceive that there is an issue with the law, then there is an issue. The solution that is required is another matter, of course. 
Worse of all, many of the anti-Saatchi Bill campaigners have taken to arguing ad hominem. Best to stick to the issues. There's actually nothing intrinsically wrong with trying to persuade people. The fact that Lord Saatchi is extremely good at it should maybe motivate the critics to be try harder at persuading, not cry foul.

Is it 'ableism' to allow a plea of diminished responsibility by Tania Clarence?

Is it 'ableism' to allow a plea of diminished responsibility by Tania Clarence?

I was quite perturbed to find that some people on Twitter considered that it was "ableism" that a plea of diminished responsibility was accepted in the trial of Tania Clarence, the mother who killed her three disabled children who all had spinal muscular atrophy, a progressive and terminal condition. Here are some of the comments:

 

Maria Mc‏@mariamcgoretti

@NeurolawGuy @SFdirewolf I disagree. The prosecution statement implied that disability is unbearable, and hastening death is somehow logical

 

Maria Mc‏@mariamcgoretti

@NeurolawGuy @SFdirewolf Looking at emotional exhaustion, despair, sleep deprivation, parallels w/ infanticide may have been appropriate 1/2

•  Reply 
•  Retweet 
•  Favourite 

 

Maria Mc‏@mariamcgoretti

@NeurolawGuy @SFdirewolf Deciding that in the face of a child's suffering, killing may be an act of mercy- that's lawmaking. Not CPS job

I have not been able to find anything in the press reporting that amounts to this, and it would be highly surprising if there was. "Mercy killing" has been the subject of CPS guidelines relating to situations where an adult has expressed a settled wish to die. Otherwise, "mercy killing" is not a defence to murder, although in situations like those of Tania Clarence where there is an abnormality of mind which has affected the responsibility of the defendant, there is a partial defence. This is an excuse, which has nothing to do with the nature of the act or even the victim, but the mental condition of the defendant. To label this verdict as "ableism" is crude exploitation of a tragic episode to make a political point.

"Patient Safety" Gravy Train

"Patient Safety" Gravy Train

We hear so much about "whistleblowers" losing so much during the process of trying to bring their concerns forward, but closer examination shows that many prominent "whistleblowers" have actually done quite well out of their activities. Julie Bailey set up a limited company, and tours the country giving talks. She particularly frequents trusts with a history of problems - and those who pay her for an appearance seem immune to her brand of vitriol. Many also buy multiple copies of her dreadful book for their staff to read. Gary Walker and Jenny Fecitt both have companies. Another whistleblower was offered a post with the Department of Health created specifically for her - doing what we don't know. I imagine many nurses reflecting on their lack of a pay raise will be surprised that there is enough to create these lucrative posts on a whim. 

Bill Cash paid someone a round £4,000 for a "report" on Mid Staffs. Who received this money? We don't know (despite this being paid out of parlimentary expenses). Nice work if you can get it. Julie Bailey and Deb Hazeldine certainly produced a report for Bill Cash. Were they the recipient of this £4,000? Cure the NHS have been silent on where their funding has come from. 

The content and value of the right to freedom of speech

The content and value of the right to freedom of speech

The recent furore surrounding "trolling" of the McCanns and the death of a woman from Leicestershire "doorstepped" by Sky News has produced a variety of reactions, some of which support dramatic state intervention to prevent free speech.  Banning speech because it is "offensive" makes the right to free speech an empty one - after all, why would anyone want to ban speech which wasn't offensive to anyone? 

This is not to defend all comments as a legitimate expression of free speech. It would be wrong to fetishize free speech to the extent that libellous comments or incitement to violence were protected. However, the objections of the McCanns include that their twins will be exposed to these comments if they go on the internet unsupervised (the wisdom of letting any minors on the internet unsupervised is debatable). It is noticeable that many of the reports failed to distinguish sufficiently between Tweets to the McCanns, and Tweets about the McCanns. This is a very important distinction. The McCanns have "no significant social media presence" apparently. Perhaps this lack of presence is a reaction to the widespread criticism of them on social media from some quarters, and I don't think this is necessarily a reason to dismiss the trolling. If the McCanns were being targetted in a campaign of harrassment, that is a different matter from comments being made about them. Plain libel is a civil matter, for good reason. The wrong is recognized by the courts, but it is not considered a criminal matter. They have already demonstrated that they have the means and will to pursue defamation suits (unlike the vast majority of the population). So the comments of Jim Gamble are quite surprising, given that a former senior police officer might be expected to know the law - or at least have the sense to check the law prior to expressing an opinion.

Many who have been genuine victims of harassment on the internet would note a sharp contrast to their own treatment by the police, who in certain areas are frankly dismissive. So Jim Gamble's comment that everyone who had similar experiences to the McCanns should go to the police just seems to show that he's divorced from reality. In many areas of the country, the police will not get involved, simply advising people to close their accounts on social media. There is a perception that these issues are only dealt with where the victims are celebrities or notables. This would erode the notion of justice for all, and reek of privilege in the old-fashioned sense of "private law". 

"Self-radicalisation" - a object lesson in confused thinking

"Self-radicalisation" - a object lesson in confused thinking

I read today about a fifteen year old girl who is believed to have run away to join ISIL who was widely described in the media as "self-radicalised". 

The term "radicalisation" is often used to describe a process that denies responsibility for extreme views, on the basis of "brainwashing" or something similar. The responsibility is shifted from the "radicalised" to the radicaliser". Or the authorities for allowing this to happen. The idea that someone can be "brainwashed" is no longer tenable. But even if it were, how could you brainwash yourself? When the radicaliser and the radicalised are the same person, then it is no longer possible to shift responsibility to an external source. 

The simple fact is that people choose to adopt ideologies. Some are more malleable and suggestible than others, but ultimately we can and should hold people responsible for the beliefs they adopt. 

Gender Neutral Toilets - Why?

Gender Neutral Toilets - Why?

If gender neutral toilets are the answer, what is the question? The justification appears to be persons who do not identify themselves according to binary genders. How common is that? Are gender neutral toilets needed for them? Do they desire to use them? Do gender neutral toilets make them feel safer?

Apparently, it is incorrect to state that gender neutral toilets are for transgender people, or for a "third sex". Which just leaves me confused.

I genuinely don't know why gender neutral toilets are necessary. I do wonder if the provision of gender neutral toilets is an attempt to challenge the widely accepted notion of gender binarity. Social engineering, in other words. 

The tricky distinction between innovative practice and quackery.

The tricky distinction between innovative practice and quackery.

The evidence-based medicine (EBM) movement has heralded increased emphasis on basing medical practise on the best available clinical evidence, although as Greenhalgh stated recently, there are problems with the implementation of EBM. It would be a false dichotomy to divide medical practice into evidence-based and non-evidence based; the principles of EBM recognize that there are different levels of evidence. 
There are some treatments that are acknowledged as being unproven. All treatments must be unproven at one time, just as all adults were once children. Penicillin and heart transplants were radical new treatments once. It can be argued that in modern medicine, a great deal of work goes into discovering new modalities of treatment, so compounds are not found by the process of trial and error of previous eras. This is not strictly true - although drugs are designed on the basis of known receptors (beta blockers being the first example), new compounds are screened using a number of techniques to assess them for particular effects. Antibiotics are still found by sampling bacteria in various places. So there are still treatments developed where it is not known exactly how they work. Where there is a known mechanism of action, there may be as yet unexplained actions that actually explain the therapeutic effect. For example, statins have an anti-inflammatory effect.
Even where there are logical reasons why a treatment might work, there is still a requirement to demonstrate empirically that it does in fact work. So prior to the completion of definitive trials, all unproven treatment are on an unequal footing.
So how do we distinguish innovative practice from quackery? In some cases, the brand of alternative medicine in question has been investigated extensively and been found to be ineffective. There may be good reasons to suspect that on the basis of the assumptions inherent to the modality or the known science that it will not work. But in the absence of empirical evidence, this cannot be definitive. Although the principles of homeopathy are absurd, nonetheless without good evidence we could not dismiss the possibility that it works. There is good evidence that it doesn't. 
However, where the treatment proposed is new, how can we distinguish quackery from bona fide responsible innovation? Really only on the basis of biological plausibility, with all the problems noted above. Only empirical evidence of lack of effect can really divide quackery from medicine. It cannot divide quackery from innovative practice.

Medical Expert Witnesses and the GMC

Medical Expert Witnesses and the GMC

The thorny issue of shaken baby syndrome has been contested in the courts many times. It is part of the scientific process that there needs to be robust debate over facts and theories. Although police forces and prosecutors may prefer to have settled science to support their prosecutions, often the science involved is not unequivocal. There is a range of legitimate opinion on the subjects of shaken baby syndrome and forensic sleep disorders, among many other bio-medical matters. Nevertheless, sincerely held scientific opinions have resulted in referrals to the GMC - an area which is arguably outside its remit (and certainly outside its field of expertise).
So Waney Squier is before the GMC on the basis of her testimony on shaken baby syndrome. Complaints against her have been made by the National Police Improvement Agency. This followed a report that a British police officer suggested that dissenting expert witnesses should be investigated. (http://www.telegraph.co.uk/health/healthnews/11094379/Shaken-baby-expert-faces-witch-hunt.html)

According to the Medical Practitioner Tribunal Service (who run fitness to practise hearings), the allegations are:

that during these proceedings Dr Squier provided an expert opinion evidence by way of written report and/or oral evidence outside her field of expertise. It is also alleged that Dr Squier failed to discharge her duties as an expert in that she failed to work within the limits of her competence, to be objective and unbiased and to pay due regard to the views of other experts.

It is alleged that Dr Squier’s actions were misleading, deliberately misleading, dishonest and brought the reputation of the medical profession into disrepute.

http://www.mpts-uk.org/calendar/event_details.aspx?ID=29076af4-7fce-44b2-81c3-914d078f1acc

It is regrettable that the decision of Judge Collins in the High Court in Meadow  was overturned. He ruled that the GMC should not invoke disciplinary proceedings unless a trial judge commented on the quality of expert evidence given. The Court of Appeal overturned this ruling, stating that the GMC was able to adjudicate where such issues impacted on fitness to practice. It is unclear when, if ever, a doctor’s expert witness work would impact on their fitness to practice. 

The courts set the standards for expert testimony, and it is the courts that should adjudicate on these matters. If they are concerned, then a GMC referral may be appropriate. Having a party to court proceedings refer expert witnesses to professional bodies is not conducive to the fact finding process.

Ideological Opposition to the Saatchi Bill

Ideological Opposition to the Saatchi Bill

My presentation about the ideological opposition to the Saatchi Bill was received well at the Postgraduate Bioethics Conference. Although there are concerns about the effect of the Saatchi Bill on patient safety, there are some groups whose objections are not related to patient welfare at all. 

The two groups of ideologues opposed to the very principle of permitting wider use of innovative treatments are 1) the evidence-based medicine fanatics and 2) so-called “skeptics”.  The self-described “skeptics” appear to be a group of humanists/atheists committed to fighting alternative medicine, most of whom have no scientific qualifications whatsoever, having graduated in history, IT or other non-scientific fields. Both these groups have articulated their concerns that the bill is a “quack’s charter”.

Both these groups suffer from ethical blindness. They fail to appreciate that bad science can be good ethics. Similarly good science can be bad ethics, as the medical experiments of Nazi Germany demonstrate all too well (experiments which have driven the current framework for research governance). 

It would be blinkered thinking to consider that lack of research evidence prohibits the use of a treatment. The pioneer of the PRCT, Austin Bradford Hill, stated

‘All scientific work is incomplete - whether it be observational or experimental. All scientific work is liable to be upset or modified by advancing knowledge. This does not confer on us a freedom to ignore the knowledge we already have, or to postpone the action it appears to demand at a given time.’

He also stated that

‘Any belief that the controlled trial is the only way (to study therapeutic efficacy) would mean that not only that the pendulum had swung too far but that it has swung right off the hook.'

Ethical illiteracy is worse than scientific illiteracy in this context. Ironically, the humanists seem to have lost sight of their humanity.

Proof that Evidence-Based Medicine can make you a bit loony?

Proof that Evidence-Based Medicine can make you a bit loony?

I have discussed the strange mentality that EBM can incubate in certain individuals previously in this blog. The so-called skeptics would probably approve heartily of the latest pronouncement from an evolutionary biologist that use of unproven treatments for the deadly disease Ebola is unethical outside of a prospective randomised controlled trial:

http://scientiasalon.wordpress.com/2014/08/14/on-the-science-and-ethics-of-ebola-treatments/

The same bug-eyed loonies 


that find the notion of a terminal cancer patient getting some hope through trying an innovative treatment quite awful, will probably be horrified at the prospect of someone with Ebola, which in the current outbreak has a mortality of 55%, trying an untested treatment in the hope that it may benefit them. It is an indictment of their inflexible thinking that they cannot see the difference between this situation and experimental treatment of more common but less lethal diseases. 

It's also proof that scientists by and large shouldn't stray into the field of ethics. A bit like another famous evolutionary biologist (and his followers) should keep out of religious debates. 

Neurolaw in the UK

Neurolaw in the UK

Neuroscientific evidence will continue to increase in importance in criminal trials. The biggest danger is the potential failure to properly test such evidence, and it is important that judges and lawyers understand the limitations of much neuroscientific evidence. What educational resources are available in the UK?

The Royal Society's Brainwaves project looked at developments in neuroscience and their implications for society and public policy. One module looked at neuroscience and the law. The medical Royal Colleges and the Royal Society of Medicine hold seminars on medico-legal matters, for example the RSM is holding a series of events on Sleep and the Law (the first meeting is on Sep 30th). A medico-legal seminar was held at Keele in 2013 on automatism which was expressly aimed at both medical experts and lawyers. There are a number of events organized for lawyers on neurolaw in the United States. Most of the universities known for neurolaw are in the USA. 

British universities do offer modules in this area, for example the University of Kent offer a module on "Neuroscience in Law: Forensic, Medical and Ethical Aspects". Much of the expertise in this area is in the field of forensic psychiatry, and indeed there is a dedicated Forensic Psychiatry Chambers, as well as many forensic psychiatrists working in high and medium secure units throughout the country. There are related disciplines such as neuroethics which inform discussion about the use of neuroscience in the law. 

There are a number of academics with a special interest in neurolaw in the UK - Lisa Claydon, Paul Catley, and Robin Mackenzie. There is a European body for neurolaw, the European Association for Neuroscience and Law (EANL). There certainly appears to be much academic activity on the continent. It would be a useful resource for the UK to have an established centre for neurolaw to aid education of the legal profession and the judiciary. Neuroscience has great potential to aid legal decision-making, but there also needs to be appropriate skills in handling expert evidence in neuroscience.  Neurolaw may still be in its infancy, but we need to be proactive rather than reactive. 

The limits of the adversarial system

The limits of the adversarial system

A recent action against barrister Lawrence McNulty emphasized that despite what some lay people might believe, there are limits in the adversarial system to the tactics counsel can employ at trial. In fact, although lawyers are retained by their clients, they are nonetheless "officers to the court". This is why a lawyer cannot argue that if his client is innocent if he knows otherwise. He may argue that the case against him has not been proven beyond a reasonable doubt, but he may not argue for this innocence.

Lawrence McNulty is appealing the decision. The disciplinary tribunal found that he had contravened professional ethics in several ways. He had argued a defence of entrapment without the necessary notice. The allegations of entrapment “were completely unfounded and his conduct had the potential to undermine public confidence in the legal profession and the administration of justice”. Further, he made a "deliberate and misguided attempt to undermine the authority of the judge and to neutralise his summing-up", and had also attacked police witnesses without giving them the opportunity of reply. 

It must be emphasized that such behaviour and resulting disciplinary action is notable for its rarity, and no one has suggested that the barrister in question is not normally conscientious and ethical. Nonetheless, it is an important reminder that the courts are interested in justice, and although the adversarial system may seem like a bun fight to the layperson, there are consequences if counsel stray across certain boundaries when representing their client. 

The Evolution of the Insanity Defence in England and Wales

The Evolution of the Insanity Defence in England and Wales

The insanity defence in English law is typically pleaded in the crown court, where the statutory special verdict applies. This dates back to the Criminal Lunatics Act 1800. Prior to this, only the common law insanity defence applied, which resulted in a plain acquittal (although often civil detention occurred given the profound degree of impairment required to persuade a lay jury of insanity before medical experts were permitted in court, the first case being in 1760). This still applies when the insanity defence is successful in the magistrates court. It results in a verdict of not guilty by reason of insanity, although between 1883 and 1964 the verdict was 'guilty of the act but insane at the time' (introduced by the Trial of Lunatics Act 1883, with the original wording restored by the Criminal Procedure (Insanity) Act 1964). This outcome was unacceptable to monarch and parliament for the man who attempted to assassinate King George III, Hadfield, and so emergency legislation was passed to enable his detention.

Hadfield was a veteran of the First War of the Coalition, and had been part of the bodyguard of the Duke of York at the battle of Lincelles, where he received a serious head wound from a sabre. It was clear that prior to the injury he had been a loyal and brave subject. It was likely that the visible head injury (counsel invited the jury “to inspect the membranes of the brain itself”) and his previous loyal service helped persuade the jury that this behaviour was contrary to his pre-morbid character. This was the first case where the concept of partial insanity was accepted as the basis of an acquittal. Hadfield’s counsel, Erskine, argued that delusion “unaccompanied by frenzy or raving madness [was] the true character of insanity”. Hadfield’s delusion was that he must die to save the world, but he could not die by his own hand. Thus he contrived to be killed in the course of an assassination attempt. 

The statutory special verdict allowed for only one disposal until recently - detention at Her Majesty's Pleasure. Once the death penalty was abolished and the defence of diminished responsibility was introduced for homicide, the insanity defence became less and less attractive given the prospect of indefinite detention. The insanity defence became virtually obsolete. However the Criminal Procedure (Insanity and Fitness to Plead) Act 1991 gave judges the choice of four disposal options, later reduced to these three:

1) A hospital order with or without a restriction order (mandatory for homicide where there is a mental condition)

2) Supervision order

3) Absolute discharge

Mackay found that this legislation resulted in increasing numbers of successful insanity defences. 

So rather than being motivated by compassion, the statutory special verdict was a regressive step. During the 19th century it was widely considered that the insane were still capable of being deterred, and so the detention of the insane had a punitive element to it. Indefinite detention very often did amount to detention for life, and the conditions in the asylums of the time were appalling by modern standards. Prime Minister Gladstone considered the special verdict 

"an inducement...to morbid minds for the commission of crime by an apparent declaration of innocence in the teeth of the facts."

This perception led to the substitution of the original verdict of 'not guilty by reason of insanity' with 'guilty of the act but insane at the time', as noted above. 

DIME Weapons and Blood Libels

DIME Weapons and Blood Libels

There have been "accusations" that Israel are using dense inert metal explosive (DIME) weapons in Gaza. The accusations amount to blood libel, which sadly is a common tactic among opponents of Israel. The accusations' source is Mads Gilbert, who is arguably not an unbiased source, being politically on the far left and of course embedded in the Hamas machine currently. 

DIME weapons are not, contrary to the allegations, banned. DIME weapons are designed to minimise collateral casualties, so it would be strange to consider them an inappropriate weapon. Part of the blood libel is the assertion that DIME weapons "cause cancer", which is based on animal models which are notoriously unreliable. This accusation is coupled with the accusation that DIME weapons are particularly lethal, an odd combination. 

Any weapon used inappropriately can be a war crime, but there is nothing about DIME weapons which makes them worse than "conventional" weapons. The evidence DIME weapons are being used seems tenuous in any case, and seems to be a pretext for demonizing Israel - a classic blood libel.

Let Sleeping Judges Lie?

The BBC has reported that a trial was abandoned after the judge apparently fell asleep. This is probably commoner than realised. There was an Australian judge who received a great deal of publicity for falling asleep and snoring loudly during several cases, as reported by Grunstein and Banerjee in the journal Sleep:

According to the newspaper, it was claimed that the judge fell asleep numerous times during a corporate fraud trial and in another separate shooting trial, both in 2002. Subsequently, in 2003,
he was reported to have fallen asleep during a rape victim’s evidence.
Following this episode, Judge Dodd was found allegedly asleep during a drug-smuggling trial that, the newspaper stated, led to the jurors nicknaming him “Judge Nodd.” In 2004, he was reported to be asleep intermittently during a 7-month trial of 7 men who were eventually convicted of shipping 383 kg of pure cocaine into Australia. The newspaper alleged that, during this 2004 trial, the defense lawyer would hand notes to court staff who were sitting near to Judge Dodd to wake him up. The sleepiness was also noted by jurors in the trial, who commented on Judge Dodd’s loud snoring. The accused were subsequently sentenced for up to 24 years in prison.

The unfortunate Judge Dodd actually had a medical problem:

In late 2004, some months prior to any press reports about his sleepiness during trials, Judge Dodd obtained a medical consultation regarding his sleepiness, was diagnosed with obstructive sleep apnea, and was apparently treated effectively. There were no reported sleep episodes following commencement of treatment. This was confirmed in a statement by District Court Chief
Judge Reg Blanch.

Trials are quite boring for long stretches, and it is the jury more than the judge who has to pay attention to proceedings. Certainly it has been held that judicial sleep is not fatal to the defendant's prospects of a fair trial, as Grunstein's and Banerjee's paper relates:

The Appeals Chamber found that appellants had failed to establish that Judge Karibi-Whyte was asleep during substantial (emphasis added) portions of the trial, although video evidence apparently showed the judge having regular sleep episodes usually up to 10 seconds long, sometimes up to 30 seconds with snoring. On 1 occasion, the judge was asleep for 30 minutes. The Appeals Chamber did comment that the judge’s conduct was not regarded as appropriate for a judge but still rejected the ground of appeal. (International War Crimes Tribunal, The Hague)

Local journalist Miss Tamsen Vian-Courtenay commented that Judge Coombe’s “head fell so far forward as to be almost touching the table,” with sounds that she thought were snoring and that
the judge “seemed to wake up with a start.” However the Court of Appeals rejected the men’s appeals against the conviction, though they did reduce their sentences. Lord Justice Rose of the Appeals Court said it was “highly regrettable” that Judge Coombe had fallen asleep, but it did not render the conviction unsafe. “Because the appearance as well as the actuality of justice being done is important, no judge ought in any circumstances to fall asleep during any stage of a criminal trial.” However the men’s lawyers had not demonstrated that Judge Coombe had failed to sum up significant evidence. (Court of Appeal, London, United Kingdom)

So let sleeping judges lie.

Joint enterprise: possible reforms

Joint enterprise: possible reforms

There seem to be two main issues with joint enterprise, particularly when it is used in murder cases. The first is the level of involvement that is needed to make out the offence. It appears in some cases that the evidence required to support an assertion of a joint enterprise is quite tenuous. According to DPP v Woolmington, any and all elements that make out an offence need to be proved beyond reasonable doubt. It is not enough to suppose that friends must have known the intentions of each other, for example. The second is the issue of fair labelling. Where the defendant is undeniably involved in some way in the offence, their involvement may still be so tangential that being convicted of the full offence does not seem like fair labelling. There are particular issues with murder because of the mandatory life sentence.

Joint enterprise is a common law doctrine, and so reform via the courts is possible. This sort of incremental adjustment might be considered most appropriate. A diminution of the ambit of joint enterprise might be considered the best option, given the policy issues of joint enterprise in tackling gang violence.

Another option is a statutory replacement. Violent disorder is a suitable statutory alternative for less serious offences. The maximum sentence for this 'either-way' offence is 5 years imprisonment. An option with a higher maximum sentence might be appropriate for gang homicide cases. 

"Common": Did the programme get the law on joint enterprise right?

"Common": Did the programme get the law on joint enterprise right?

Judging by Twitter, "Common" (written by Jimmy McGovern) has created a storm. The drama revolves around a young man caught by the legal doctrine of joint enterprise. There have been calls from campaigners to reform the law because of injustices created. Did the programme represent the law on joint enterprise accurately? 

The protagonist in "Common", Johnjo, is a young man who is sitting in a car in the opening scene, when his friends jump in and ask him to drive off. It transpires that one of his friends has stabbed someone. The knife is dropped down the drain. The victim dies in hospital. The perpetrator threatens Johnjo and his family with dire consequences if he "grasses". Johnjo thought they were going out for a pizza, but it turns out the other young men in the car went out to "get someone".  The facts are a little contrived; Johnjo leaves the engine on and stays in the car because it's cold, rather than for a quick getaway. The detective's comments also seem rather OTT. He revels in his deceptive and pejorative portrayal of the scope of joint enterprise. The judge certainly would not claim that the courts could not change the common law. This is a major legal error.  

The narrative that has been taken up in much of the press is that joint enterprise is a "dusty and illogical old law". However, as the Guardian points out, the doctrine enabled the conviction of two of the murderers of Stephen Lawrence. It was responsible for the conviction of Gnango for the shooting of an innocent bystander by "Bandana Man", during a gunfight which he was involved in. It enabled the conviction of members of the gang that killed Ben Kinsella. 

The case law on the common law doctrine of joint enterprise suggests that Johnjo's involvement would not be regarded as acting with a common purpose. He was not part of a joint enterprise. The doctrine is justified on the grounds of policy. When two men killed a man during an attempted armed robbery of a gunshop in Dundee, each defendant lodged a special defence of incriminating the other. By the doctrine of joint enterprise, they were both convicted of murder. The same legal tactics will occur in killings by gangs. The leverage gained on the actual murderer by the prosecution's ability to convict by the doctrine of joint enterprise is a legitimate tactic to achieve justice where there are evidential difficulties. I think the portrayal of the dilemma posed even for the innocent by plea bargains was excellent though. It demonstrated the very real possibility of the factually innocent pleading guilty under such arrangements. The harshness of the doctrine is exacerbated by the mandatory life sentence for murder. The law has always had to tread a fine line between due process and policy considerations. 

To move onto controversial real life cases, there was discussion of joint enterprise in another programme, Guilty by Association. This took a more balanced view of the law. Several cases were discussed, including the Alex Henry case. His sister, Charlottle May Henry, Tweeted that Alex Henry was found guilty of murder for "merely being present at a spontaneous altercation". This is not the case according to press reports of the trial. According to GetWestLondon:
"the victim and his brother were with friends in Ealing before Grant-Murray came across them in Northcote Avenue. An argument began and the defendant was allegedly heard on the phone saying ‘bring a knife’ or ‘bring the knives’. When the two other defendants approached, one or both of them were armed with knives and the three stabbed both Mr Khezihi and his brother in the back before running off."

The doctrine of joint enterprise requires acting with a common purpose. It is a part of accessory liability, whereby not only the perpetrator of the crime but all who were involved are guilty of an offence. Simply being present at the scene of a murder will not result in a conviction under joint enterprise. The fourth defendant was acquitted. He persuaded the jury that he was not involved in the murder. Henry and Ferguson were apparently asked to come with a knife or knives. If this was the case, this suggests that this was not a spontaneous altercation. The phone call is disputed however; Charlotte Henry kindly sent me more information about this issue. If there was no phone call, the case looks extremely flimsy. 

My feeling is that Jimmy McGovern didn't succeed in portraying the reality of the law. There is a debate to be had about the scope of joint enterprise, but "Common" didn't provide the public with the necessary facts to make their minds up about the law. Even the media commentators failed to appreciate the relevance of the facts of the case. The jury weren't put to the question. The British jury of twelve peers have always been part of protection against oppressive laws. Of course, this is not an infallible safeguard against over-expansive laws and interpretations of laws - but the common sense and sense of justice of the British public is a bulwark against the excesses of the criminal justice system. As one barrister pointed out, the feeling of many is that people involved in gang crimes should be punished if they are part of that crime, not necessarily the actual knife or gun wielder.

"Never events" - what are they?

"Never events" - what are they?

The term "never event" is being bandied around a lot at the moment it seems. Whenever technical terms like "never events" are taken by the wider community, they tend to be misused and abused by a process of appropriation for situations that are outside the initial ambit. In essence, they are used to label something by analogy, often as part of a moral panic.  

Apparently "whistle blowing" should be a never event. Or at least "true whistle blowing". This betrays a lack of understanding of what a "never event" is. The origin of never events is the billing system in the United States. If healthcare providers are funded for the treatment of the results of negligent care, then there is a perverse disincentive to preventing these complications, such as pressure ulcers. Further, never events are generally considered wholly preventable by an appropriate system for care. Their occurrence is prima facie evidence for either a failure to provide such a system, or the culpable failure of an individual to comply with that system. An example of this is operating on the wrong site (usually on the wrong side), or giving a blood transfusion to the wrong patient. Here the issue is more clearly patient safety than billing issues.

This is by contrast to other causes of harm such as delayed diagnosis or misdiagnosis, which may not be attributable to any fault as such, and are certainly not always amenable to elimination by better systems design. 

The attempt to appropriate the "never event" for these totally unrelated issues is at best sloppy, at worst a deliberate fudge. 

Tracey: some more thoughts

Tracey: some more thoughts

There has been a lot of interest, naturally, in the Tracey decision. Some of the comments have been insightful and thought-provoking. Some of them have been neither.

One doctor expressed his concerns about the decision with this sketch:

"Dr Ethic “Now there is something else I have to talk with you about. The High Court and General Medical Council says I must have this conversation with you. It is about cardio-pulmonary resuscitation and do not attempt CPR decisions. Now CPR is a treatment for ventricular fibrillation or ventricular tachycardia or standstill in patients who are having a heart attack. Let me reassure you that you are not having a heart attack. Now CPR is invasive causing in an elderly post menopausal woman like you, multiple painful fractured ribs and sternum. Also CPR does not work in people over 80, only in really exceptional circumstances, and certainly not on a general ward. A failed CPR results in death.

Now a recent study from Scotland shows that at your age and having been in hospital once, you have a one in three chance of death in the next year. I have to discuss with you that CPR is not going to be used when you come to die. In the meantime as I said we are going to do all the treatments that are wise and likely to work. So I am going to sign your DNACPR form and Fergus will see you tomorrow.

That’s OK then? Everyone happy, let’s move on, we have 23 more cases to see before patients’ protected lunch time, the lung MDM and my two week cancer wait clinic at 1pm, which is overbooked by 50%.”

(excerpt but full sketch available at link below)

https://www.dropbox.com/s/ptm8wtyiazgm40t/The%20DNACPR%20Sketch.doc

Obviously this is a parody (although though some po-faced and credulous journalists and nurses didn't realise this), but it illustrates an important point. The courts intervene in the doctor-patient relationship at their peril. 

One naive healthcare journalist commented that the issue was simple, it was about having compassion and respect. Thus speaks someone who has no idea about the realities of medical practice. For many frail people near the end of life, forcing a conversation on them about an intervention which would be futile is not remotely compassionate. One healthcare lawyer argued that Tracey does not entail forcing such discussions on patients. That is very much arguable. It must remembered that Mrs Tracey herself avoided the discussion of CPR.

The court ruling does not (and would not) force doctors to provide inappropriate care. So nothing about this ruling will prevent the decision being made after cardiac arrest by a junior doctor (possibly only after some undignified and painful CPR). Neither will it prevent the use of code words that signify the inappropriateness of CPR. We may just see the return of the bad old days of very few people being designated as DNAR, and having to undergo an undignified rite of passage which amounts to an assault prior to death. It would be much better to have a consistent doctrine for this invasive procedure, namely requiring informed consent for it to be provided. Why should CPR be considered as the default position for all patients of all ages in all states of health? 

Another day, another depressing story

Another day, another depressing story

Another story of a tragic death of a young person was aired on the midland news today. It involves Amy Carter, who was admitted to Worcester Royal Infirmary and discharged with a diagnosis of glandular fever. She returned to the hospital in multiple organ failure due to bacterial sepsis, and died shortly after. The trust accepted out of court, without accepting liability - in fact they issued a statement that "At all stages of her hospital stay, Amy received appropriate care".

http://www.bbc.co.uk/news/uk-england-hereford-worcester-28020357

Amy's parents appeared on television expressing their outrage. They were angry that the hospital has not apologised. They also felt that an internal review was inappropriate.Her father said:
"You want somebody who’s outside, who’s got nothing to do with the NHS or the trust or anything like that, somebody totally independent, to make them suffer and have to feel like we do now, for the rest of our lives. Somebody needs to pay for what they’ve done, and I don’t mean monetary, I mean pay emotionally and physically, the way we  [have]."
Perhaps understandable in the circumstances, although it is not the reaction I would have. No one set out to harm their daughter. No one deserves to be hurt for simply doing their job to the best of their ability. 

I have commented elsewhere about the failure of the tort system to provide satisfactory resolution for victims and relatives of medical negligence. We don't know that there was negligent care here. This is one of the problems with out-of-court settlements. Of course the Carters didn't have to accept an out-of-court settlement. Certainly if their main aim is to get at the truth, then going to court would be much preferable. Sadly the system does not accommodate this. It may well be that the hospital has nothing to apologise for. Medicine is full of uncertainty. It has been known for a patient to drop dead in the corridor after being pronounced fit in the cardiology clinic. 

The saddest aspect of this saga for me is the desire for retribution expressed quite clearly by Amy's father. It is a scenario that occurs with monotonous frequency. Can this bitterness be reduced by a different way of approaching these cases? Not in all cases I suspect. We need to recognize and understand this. 

Observer story about the war on drugs

Observer story about the war on drugs: "The war on drugs killed my daughter"

I am not a reader of the Guardian, because although I agree with many of its stated values, I know from personal experience that it is totally hypocritical in practice. So I don't know what its stance on drugs is, but I'd take a shrewd guess it's in favour of legalising recreational drug use. The chattering classes in North London are quite fond of a bit of Charlie at their dinner parties after all. It seems the only explanation for the massive leap it makes in this story where it is claimed that the war on drugs killed someone's daughter. 

Story here: http://www.theguardian.com/society/2014/jun/22/mother-fights-against-war-on-drugs-anne-marie-cockburn-martha-fernback

Normally I avoid reverse snobbery, but it seems quite remarkable that this mother doesn't blame her daughter, the dealer, or even the maker of the drug. She blames the government. Personally I am against the legalisation of recreational drugs, but for some limited tolerance and improved treatment for drug addictions and better access to problem-solving courts. Whatever your feelings about legalisation though, this narrative makes no sense. If middle-class kids can run foul of illegal drugs, what about poor kids? 

The reference to khat is slightly baffling. The drive to criminalise khat has come from the Somali community, concerned about the zombification of many young Somalis:

http://www.coventrytelegraph.net/news/coventry-news/coventry-campaigners-welcome-government-crackdown-4873433
All in all, it seems a rather desperate attempt to make a personal freedom issue into a public safety issue.

The problems with EBM

The problems with EBM

Evidence-based medicine (EBM) is a philosophy of the practice of medicine which may seem like motherhood and apple pie, obviously true and pointless in arguing against. However, many medical practitioners have issues with EBM. Proponents of EBM might argue that none of these criticisms are valid reasons not to practice EBM in its purest form, but certainly EBM as it is practised has several issues.

Trisha Greenhalgh wrote in the BMJ recently of a "movement in crisis". The reasons for such a crisis include:

• The evidence based “quality mark” has been misappropriated by vested interests
• The volume of evidence, especially clinical guidelines, has become unmanageable
• Statistically significant benefits may be marginal in clinical practice
• Inflexible rules and technology driven prompts may produce care that is management driven rather than patient centred

• Evidence based guidelines often map poorly to complex multimorbidity
Source: http://www.bmj.com/content/348/bmj.g3725

Much evidence is not a good fit for the individual patient with a complex set of interacting problems. EBM potentially reduces the importance of patient preference and shared decision-making. There is also a tendency to excessive confidence in prospective randomised controlled trials, despite all the problems and limitations of the scientific method. There is always an element of interpretation of scientific results and social construction of theories, but this aspect of the sociology of scientific knowledge is apparently neglected. 

The "groupies" of evidence-based medicine (not doctors generally, but so-called "skeptics") feel empowered to bully providers and, worse of all, patients who opt for medicine that is not evidence-based. There is an element akin to religious fundamentalism, although most of that movement is avowedly humanist. The reasons for this connection are not clear, but there seems to be a parallel with the trolling of the religious by the followers of Dawkins.

The recent decision at the Court of Appeal on DNR/DNACPR orders

The recent decision at the Court of Appeal on 'do not attempt resuscitation' orders

The Court of Appeal have ruled that Janet Tracey had her Article 8 rights infringed by Cambridge University Hospitals NHS Foundation Trust when they failed to consult with her and inform her of a decision to designate her as not for attempted cardio-pulmonary resuscitation (DNAR [do not attempt resuscitation] order). 

It has been recommended for some years now that good medical practice requires that doctors discuss such decisions with patients and families. As the court in this instance restated, there can be no legal requirement to provide a patient treatment that is not medically indicated, although the clinician should refer the patient for a second opinion if necessary.

This decision now imposes a legal duty to consult and inform patients about these decisions - not as one BBC newsreader stated that doctors have to get permission for DNAR orders. There are circumstances where doctors can omit this discussion, where they think this will harm the patient. This exemption is in some ways curious, given the particular facts of this case. It states in para 19:

'Dr Simons said that Mrs Tracey did not wish to engage in discussions about her care and prognosis. Every time she initiated a discussion about resuscitation, Mrs Tracey would either say that she did not wish to discuss the issue or that she would speak to her family about it.'

Further at para 25 & 26

'He submits that, if Mrs Tracey did not wish to discuss her prognosis with Dr Simons (described by one of her daughters, Kate Masters, as “sympathetic and a good communicator”) there is every reason to think that she was not willing to discuss it with any other doctor. Indeed, according to the evidence of Mr Tracey (para 57 of the judgment), Mrs Tracey felt “badgered” by the attempts of the doctors to discuss her end of life treatment with her.

Lord Pannick also draws attention to passages at paras 4, 9, 11, 13 and 14 of the witness statement of Dr Simons. For example, at para 11 she says:

“Mrs Tracey did not wish to engage in discussion relating to her care and prognosis. On occasions when I attempted to initiate discussions with Mrs Tracey regarding her treatment and her future she did not want to discuss these issues with me.”'

This decision will result in much more "badgering" of patients in the end stages of life - unless ample use is made of the exemption in para 93 that the doctor:

“thinks that the patient will be distressed by being consulted and that that distress might cause the patient harm”

The courts have been very reluctant in the past intervene in the clinician-patient relationship. I fear this decision may prove why this was a wise policy. Further, this decision is likely to legitimise and perpetuate misconceptions about CPR and the effect of DNAR orders.

Panorama and expert witnesses

Panorama and expert witnesses

The recent Panorama programme on expert witnesses apparently showed that at least some expert witnesses were willing to be experts for the party, rather than experts for the court. I note that the programme involved parties going straight to the experts, and I think this is probably very significant. I would imagine that instructing lawyers usually organize the assumptions on which they wish the expert to base his or her report on. Also I note that no medically qualified experts were involved (nor any with a definite professional body and/or register). 

Is this Panorama exposé a mortal wound to the status of expert witnesses? I'm not so sure it is. I think any decent advocate worth his salt probably assumes that the expert witness instructed by the opposing side may be consciously or subconsciously biased. Any opinion based purely on details (false or true) from the party would be ignored as effectively hearsay, and amounting to oath-helping. Thus a psychologist or psychiatrist who relied purely on a sleepwalker's accounts of his or her sleepwalking would not be fulfilling their role as an expert witness correctly. 

If the Panorama programme injects a note of suspicion in the justice system towards expert test, that would seem to be healthy. I suspect that scepticism is already present in abundance. All expert evidence requires examination by advocates who understand about science. That is far more important and relevant than any register of expert witnesses, which would not prevent bias occurring.

'Reliable Witness': 'Doctors', dementia, and confessions

'Reliable Witness': 'Doctors', dementia, and confessions

Watching in passing an episode of the BBC daytime serial drama Doctors entitled 'Reliable Witness', one of the storylines was about a man with dementia who confesses to the murder of his wife. The very vexing issues of the punishment of people with dementia could not be explored in depth in one episode, but there was some coverage of the neuroethical problem of holding someone to account whose mental capacity is severely reduced. 

There are a number of reasons related to mental conditions for not holding someone to account. In the case of sufficiently advanced dementia, the basic problem is that it may be impossible to hold the person to account in the truest sense. The person with advanced dementia cannot own their actions nor answer for them.  If they cannot understand the reasons why they were being punished, and therefore to punish them would be truly Kafka-esque. Instead of reflecting on their crimes, they would be constantly perplexed by their predicament.

If dementia was apparent at the time of the proceedings, the defendant might be found unfit to plead, and so be spared a trial. However, they would still be liable for the disposal options available under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 - either an absolute discharge, outpatient supervision, or a hospital order. In the case of homicide, a hospital order would be mandatory for a mental disorder.