On Monday the appeal begins of Prof John Walker-Smith against the decisions of the GMC as one of the three doctors in the Wakefield case. It should be stressed that Prof Walker-Smith’s appeal is purely on his own behalf and that Andrew Wakefield was forced to withdraw from the appeal due to cost. A third doctor, Prof Simon Murch, was permitted by the GMC to return to work on the basis that he was only Prof Walker-Smith’s junior at the time.
A key issue at the GMC hearing was the prosecution claim that the Wakefield 1998 Lancet paper was in reality a study that had been commissioned by the UK Legal Aid Board relating to pending litigation over the MMR. The three doctors, on the other hand, contended that the projected LAB study was never performed, and that Lancet paper was “an early report” of cases seen on the basis of clinical need, as indeed it had stated. Paradoxically, the GMC panel also found the doctors to be guilty of breaching the terms of the LAB protocol in virtually every respect, instead of accepting the plausible evidence of the doctors that it was simply not the same paper. The panel found:
“The Panel has heard that ethical approval had been sought and granted for other trials and it has been specifically suggested that Project 172-96 was never undertaken and that in fact, the Lancet 12 children’s investigations were clinically indicated and the research parts of those clinically justified investigations were covered by Project 162-95. In the light of all the available evidence, the Panel rejected this proposition.”
However, the panel never elaborated on what evidence it was they were citing, and another problem was that the panel mis-described ‘Project 162-95’ which was not a project at all but the ethical permission granted to Prof Walker-Smith to retain biopsy samples taken in the course of clinical routine for further scientific investigation, when he brought his clinic to the Royal Free Hospital in autumn 1995. Indeed, parents of the Lancet paper children had signed this ethical permission in the course of their children’s routine clinical investigation. Of course, if the panel had stated this openly before the assembled media in January 2010 they would certainly have had some further explaining to do, which may have been avoided by the ruse of calling 162-95 a “project”.
A fundamental problem with the GMC findings is that they are supposed to be to the highest standard of legal proof which in the UK is “beyond reasonable doubt”. However, in finding as they did they simply set aside the oral evidence of Prof Walker-Smith and the other two doctors about the clinical condition and history of the patients (amongst other matters). The panel never found Prof Walker-Smith to be guilty of dishonesty, but nevertheless his evidence was systematically ignored. This was despite the fact that Prof Walker-Smith is an acknowledged world expert on pediatric gastroenterology – the main pioneer in the field with Prof Allan Walker of Harvard - and far more qualified to speak about it than anyone else present at the hearing apart from Prof Murch (and certainly the panel).
It is an interesting feature that neither the prosecution or the defence called the parents as witnesses (of course none had ever complained). The prosecution might have found it harder to maintain that patients were not sick and the procedures inappropriate if they had called them, while the defence no doubt took the view that it was not for them to prove anything, and in a normal hearing they might have been right.
It is difficult to believe that the British establishment will allow a single chink of light to be shed on these matters. Ken Clarke, who was Health Secretary in 1988 when GSK’s Pluserix MMR indemnity was signed, is now head of judiciary (Justice Minister and Lord Chancellor), and when he ran as leader of the Conservative Party in 2005 it was with Sir Christopher Gent, chairman of GSK, as his principal backer. Against this the presiding judge, Sir John Mitting has a long history frustrating the government bureaucracy in his decision-making and is not obviously conflicted. But in January 2010 an Oxford journal was already calling the result of the GMC. We note the date of publication of David Galton’s parody ‘Kafka’s trial revisited’ ten days ahead of the GMC panel’s findings on fact. We are about to discover what – if anything – has changed in two years.