By John Stone
On the last day of his summing up of the defence case for Andrew Wakefield, defence counsel Kieran Coonan at one point remarked about the allegation that Andrew Wakefield had breached medical ethics and the terms of his contract by administering an unusual medication (Transfer Factor) to a patient (patient 10 in the “Lancet Study”) that “this pursuit by the prosecution of Dr Wakefield at all costs was unattractive” (reminding us all also of a certain journalist). Coonan spent the better part of the morning forensically demolishing the prosecutions claims about this matter. By the time the evidence was heard it had transpired that ethical permission for the use of this medication had been sought jointly by Wakefield and John Walker-Smith and received from the Ethics Committee (Dr Lloyd), that Wakefield had obtained the medication and deposited it in the hospital pharmacy (where it would have been issued on prescription), and a prosecution witness had declared the medication to be completely safe: “no more dangerous than drinking goat’s milk” (Dr Lachman).
Coonan emphasised to the hearing that the prosecution never had any evidence that Wakefield had administered the medicine – no documents were produced and no witnesses were called – but in the face of the recovered documents suggesting that everything about the matter was above board, instead of backing down the prosecution was reduced to alleging without evidence that Wakefield had administered the medicine having held some back from the consignment he had deposited in the pharmacy. They had also further tried to muddy the issue by mixing up the safety of this medicine with another type of Transfer Factor (of bovine origin) about which Wakefield made enquiries some time after the event.
Probably, the single matter on which Wakefield is most vulnerable is the issue of the birthday party at which blood samples were taken. There was, of course, such an occasion but it bore little resemblance to that described in his talk to the MIND Institute of California in 1999. Wakefield’s remarks on the occasion of the MIND talk, while originally taken literally by the prosecution, had been intended humorously and were understood as such by the audience, who had laughed. Contrary to the anecdote every care had been taken to handle the matter sensitively. A group of parents (some of whom were medical people) were approached before the party to ask whether their (healthy) children would be happy to give blood to help sick children – no inducement was offered in advance (but five pounds had been slipped into the party bags of the children who had helped out at the end). The samples were taken not by Wakefield, but by someone practiced in taking blood samples from children as they had arrived at the party, and using appropriate equipment. The occasion had been managed according to contemporary advice about taking blood samples from children under relaxed conditions (rather than in a hospital, which might not be so pleasant), and had passed off happily, without incident and without any of the participants ever complaining - indeed, “They were proud to have taken part”.
Evidently, the prosecution had conceded some of this since they had agreed that charges be amended so that it was not stated that Wakefield had taken the blood himself. The prosecution had quoted as evidence the views of witnesses Professor Ian Booth and Sir Michael Rutter about the inappropriateness of the conditions under which the blood had been taken, but this was on the basis of the fanciful MIND narrative, rather than what actually happened, which Rutter had acknowledged. But Coonan also expressed dismay that the prosecution counsel, Sally Smith, should have co-opted the evidence of Simon Murch, who had spoken about the potential for distress to autistic children when blood was taken (a completely different matter).
However, Coonan acknowledged that Dr Wakefield had been forced to concede that he had not known at the time of the party that he should have sought ethical permission for this exercise under National Health Service guidelines. Coonan, nevertheless argued that it was a “low risk” exercise given the care which had been taken. There remained outstanding the charge that Wakefield’s action “had brought the profession into disrepute”, which might have been the case if he had actually done what he told the MIND Institute audience, but was tenuous given that he had not.
Coonan’s concluding remarks were left till after lunch, which was extended by 10 minutes because “the Wakefield team” and “the GMC team” were having “a conflab”.
The underlying theme of this last section, which lasted just over half an hour, was the extent to which the prosecution case had rested on the absence of evidence, which in turn depended on the unavailability of documents, some of which had actively been withheld by the Legal Services Commission, by the prosecution itself, but some of which had been located – as in the case of the Transfer Factor issue – by Professor Walker-Smith’s team. He noted that there were still known missing documents likely to be helpful to the defence, and how unfair it was that in the absence of such material it was left to one person’s memory playing off another’s at a very great distance in time from the actual events, and in the face of actually unsubstantiated allegations. And he returned in particular to the evidence of Dr Horton.
Again, in this instance, it had been documents retrieved at the last moment, which had supported the defence case, and had at the very least shown that the Lancet was institutionally aware of Dr Wakefield’s involvement in the MMR litigation, whatever Dr Horton’s memory. Coonan pointed out that all this could have been avoided if Dr Horton, himself, had instituted a search at the Lancet before making his main allegation in 2004, and again in 2007 before giving evidence to the GMC under oath. He thought it regrettable that even now Dr Horton had not apologised, but what he considered most deplorable was the twist put on the matter by prosecution counsel Sally Smith in her summing up, complaining that Wakefield had sought to defend himself by impugning Dr Horton’s integrity. Apart from anything else Dr Wakefield had been at pains not to do this – had expressly avoided it – while producing the documentary evidence that Horton was substantially mistaken.
Coonan pointed out the complete consistency of Wakefield’s position over 5 years: that with almost none of the documents available to him at the time of the statements he had published in the Lancet in March and April 2004 he had stated a position that was entirely vindicated years later when the documents came to light (though not through the auspices, of course, of the Lancet or Dr Horton).
I am by no means a veteran of legal hearings but I would be very surprised if it was normal for one counsel to attack the integrity of another so forthrightly as happened on several occasions on this last day of Andrew Wakefield’s defence: all the more remarkable because Kieran Coonan and Sally Smith share offices (HERE). Coonan cannot have said any of this lightly, and it is, of course, deeply troubling - not least because until now the panel have been so indulgent to the prosecution in allowing it to conduct itself in this way.
We can only conclude that the GMC prosecuting team went on a fishing expedition against Andrew Wakefield and his colleagues at the behest of government minister, aided and abetted by a certain journalist, and that the exercise has been prejudicial both in spirit and execution. It is hard to imagine, though, a case being demolished more thoroughly than it was by Coonan in his final speech. Let us hope that at last fairness and good sense will prevail.
John Stone, based in London, is a Contributing Editor to Age of Autism.