There is one consolation that I will bring to that house of misery
- a clear conscience, a heart whose still small voice
tells me that I have done no wrong to upbraid myself with.
This is the consolation that I have - that my conscience is clear.
Augustine E. Costello in1867
Speeches from the Dock, M.H.Gill & Sons
By Martin Walker
On Tuesday 13th April and Wednesday 14th April, its 200th day, the hearing sat in order to hear mitigation and assess 'sentencing' arguments on behalf of Professor Murch and Professor John Walker-Smith. Dr Wakefield, disgusted by the clearly biased 'findings on fact' in January, had decided to have no more to do with the hearing. Mr Miller, counsel for Professor John Walker-Smith, presented his case on Tuesday and on Wednesday, Mr Hopkins for Professor Murch presented evidence to their character and integrity while arguing the words 'serious', 'professional' and 'misconduct'.
So essentially, all parties having been found guilty on most if not all the charges, the tribunal was about to pick the carcass clean arguing politely about who received which internal organs. Although from the perspective of the legal profession, perhaps even from the perspective of the medical profession, one can understand the defence attesting to the good character of the defendants, over a single day after the prosecution has spent over two and a half years attesting to their dishonesty and unethical behaviour, from my perspective and perhaps that of other survivors of the nineteen sixties, this situation might have appeared absurd.
Frequently over the time of this trial, my mind has slipped back to the sixties and early seventies when a whole generation, or so it appeared, undermined the pastiche ritual and the theatrical authority of the governing class, when a whole generation suddenly became their own people. It wasn't so much that they went head to head with authority; some of them slipped round the corners of it, almost ignoring it and began independent lives.
Unfortunately, governments and states, corporations and the ethos of shopping are now back in the driving seat and the first response of many in today's post-managerial society is to doff their hats and pay homage to the new ministerial class that now patrol our political and regulatory malls. So it comes as little surprise that the counsel presenting the defence of the three doctors at the GMC, continue to clack along the tin tracks like model trains on the drawing room floor, without a hint of disrupting the proceedings even by hooting their whistles.
What might have been the outcome of this case if, on the first day, counsel for the three doctors had said that they would first present the character evidence on behalf of the doctors and then withdraw from the hearing, forcing the GMC to continue alone or negotiate a wholly new ground plan? However, the law is like diplomacy, war by more civilised means and the lawyers were no more likely to disrupt the proceedings than they were to wear kaftans to court or light-up spliffs during the proceedings.
Yet there were times, when I could see that the presentation of the defence cases only obscured and confused to a much greater degree, the honesty, kindness and ethical principles of the three accused men. And another thought returns time and again: the lifetime's work, the good name and the public conscience of these three doctors, whatever the juridical process mutters, has now been almost completely razed, they lie still and bleeding in the gutter, carried there by the crash bars of a juggernaut as they idled across the road earnestly talking about how they might make safe the health of vaccine damaged children. Nothing will raise these doctors to their feet or to wholeness their dreams or careers.
Tuesday was a relatively quiet day at the GMC; there were no demonstrations outside the building in support of the doctors. Inside the long white hearing room, the alert charcoal clad figures watched Mr Miller as he began presenting a series of letters in support of Professor John Walker-Smith. Some of these are quoted, below. In the public seats, JWS had the support, as he has had on other occasions throughout the hearing of his wife, daughter, son and grandson.
The session began at 10.00 after the long practiced morning delay, with Mr Miller confirming that Professor Walker-Smith's submissions would be completed in one day. He mentioned that he would read some, but not all the testimonial letters, that the Panel had before them. It was Mr Miller's case that it was important that the Public should know that these letters underpinned their submissions.
The language of mitigation is a nightmare language; again, by definition diplomacy, a language that disguises intent rather than explaining it. How does counsel or indeed the innocent defendant who has been found guilty phrase his profound belief in the wrongness of the prosecution? How does a defendant found guilty of fifty odd charges, retain credibility enough to express his overwhelming contempt for the prosecution.
Does counsel read out and endorse testimonials that say, 'I think my friend was well fitted-up by you bastards, people who aren't good enough to hold his hat', or, 'To be honest I think that Big Pharma and Public Health power players are behind this charade and I don't believe for a second that my dear friend has done any of the things that you have accused him of, this whole trial was a get up during which the prosecution and their witnesses lied through their teeth'. Or do you depend upon friends and colleagues who want to throw you on the mercy of the court? 'I can see that my colleague has done something quite terrible, and I would like on his behalf to ask for your everlasting forgiveness', or 'terrible as the offences of my colleague are, I hope that you can find it within your hearts to forgive him'.
It was, however, on a safer very English side of the road that most of those testifying on behalf of professor Walker-Smith veered. The witnesses on behalf of Professor Walker-Smith and Professor Murch spoke mainly in euphemisms and an ancient coded language, containing expressions such as 'My colleague is one of the greatest gastroenterologists in Europe and what he has done seems completely out of character' or 'It is difficult for me to accept that my colleague did the things you say he did, however, having heard the evidence, you must be right'. How do you express complete faith in your colleagues' integrity while allowing that he must have committed at least 50 ethical blunders. The avoidance of the political and the personal at all costs, exhibits the practice of diplomacy at its highest.
But this semantic quagmire is, like most things created and governed by lawyers, a creature of the game introduced and played by the prosecution. What a marvelous weapon, a mitigating statement, or testimonial could be in the hands of a truly radical lawyer; a real chance to go beyond the box. 'When you see my colleague and old friend Doctor Wakefield, you see before you a man who has fallen amongst thieves, callous and heartless people. Mercenary prosecutors who have turned the truth on its head and pursued three completely innocent, hard working doctors whose only interest were in their young patients. I will continue to use all the powers of my office to campaign for a public enquiry into this matter and to bring to justice those who planned and perpetrated this cruel conspiracy'.
Alas, in most of the testimonies Mr Miller read out prior to the mid morning break nothing came close to this radicalism. Although all the testimonies mentioned how confused, astonished, surprised even amazed were the witnesses, none of them were outraged or propelled to take up arms. One peculiar testimony even spent sentences claiming the writer's bourgeois heritage of rationality and civilized behaviour. In defence of her courteous testimonial, reassuring the GMC the witness wrote proudly 'I am not an activist'. To which my only heartfelt reaction was 'Well, you should be ashamed of yourself.'
* * *
Mr Miller read out 16 testimonials before the morning break and 17 following the morning break before the appearance in person of the two character witnesses for Professor Walker-Smith. I have quoted some of these testimonies, at the very least they show a striking solidarity from the medical profession with Professor Walker-Smith and at the most between the lines they message the hypocrisy and stupidity of the GMC's fraudulent prosecution.
'I am a Consultant Paediatric Gastroenterologist ... I was very soon impressed by Professor Walker-Smith’s immense knowledge in the field of Paediatric Gastroenterology as well as by his kind and compassionate attitude towards his patients.'
'I am aware that Professor Walker-Smith has recently undergone a GMC hearing following allegations on his professional conduct. The above allegations came to me as a surprise, since I have always considered him as a model to emulate for integrity, honesty, skills and knowledge'.
* * *
'I am writing in deepest support and solidarity of Professor John Walker-Smith, who has been involved in the publication of the Wakefield et al Lancet paper in 1998.'
'He has an enviable international reputation with more than 300 published scientific and medical papers and publications in the field of paediatric gastroenterology.'
* * *
'I first met Professor Walker-Smith in 1978 when my daughter was in his care. He is a highly professional yet caring man, very gentle and reassuring.
I have the utmost respect for him and placed all my trust in him when it came to my daughter’s treatment.'
* * *
'I have known John Walker-Smith for almost thirty years, having met him first in 1981, when I was embarking on my career as a paediatric gastroenterologist ... I have been dismayed to learn of the GMC’s findings and distressed to see the effects of these and the very long and drawn out process that led up to them, on Professor Walker-Smith... While I am aware of, and accept, the findings of the Fitness to Practise Panel, the purpose of this testimonial letter is to state my belief that I have never seen evidence, nor do I believe, that John Walker-Smith acts, or has acted, without the highest professionalism, integrity, and clinical ability.'
* * *
'It is a mystery to me, on the basis of experience of relationship with scores of other colleagues, that someone as dedicated, honourable and highly regarded as Professor Walker-Smith has proved to be over the many years that I have known and worked with him should suddenly become a pariah in the eyes of others ... John Walker-Smith is to me, to all his immediate associates known to me and to the international medical fraternity, the very embodiment of professional integrity and humanity, a saintly and truly honest person with the highest ideals.'
* * *
'I am a consultant paediatric gastroenterologist and work at Southampton General Hospital. I have known Professor Walker-Smith since the early 1980’s ... He is, in my opinion, a man of the highest calibre in terms of his integrity, professionalism and clinical ability. During his distinguished career as an academic and practising clinician he was recognised nationally and internationally as a pioneer in paediatric gastroenterology. This included pioneering work in the recognition and management of inflammatory bowel disease in children, diagnosis and management of coeliac disease, recognition diagnosis and management of gastroenteritis including its complications. His work had a massive impact on the care of children with gut problems, including both awareness and clinical care nationally and internationally.'
* * *
'I am a consultant paediatric gastroenterologist and I was initially appointed to a consultant post in 1978 at Westminster Children’s Hospital, London... I first came to know Prof Walker-Smith in 1978. He is a highly regarded colleague, a man of integrity and honesty... The allegations which have been the subject of the GMC hearing have created surprise and consternation amongst his peers.'
* * *
'We were patients of you and your team during the now infamous period on 1998/9. We had been under Great Ormond Street epilepsy team for the 5 years preceding and their view was ‘just diarrhoea and no need to worry ... What we learnt from the investigations that followed with you and your team changed the course of our lives and especially the effect on [T]. Your work gave us a meaningful agenda from which to work. It also gave us the understanding of the extent of the damage to [T’s] colon and bowel and the huge degree of impaction that followed. From this knowledge we could now at last begin to address these matters, for [T’s] benefit ... we are forever grateful to you for helping us to improve the abilities of our children through your work. You have changed our son’s life beyond all our expectations.'
* * *
'I have been a Consultant Paediatric Gastroenterologist in Manchester for over 17 years ... I have been saddened to read the findings of the Fitness to Practise Panel but I remain convinced that Professor Walker-Smith would not subject any child to unnecessary investigations if he did not believe that there may be a potential benefit for that child.'
* * *
Although the testimonials above showed considerable support and some critical puzzlement with respect to Professor Walker-Smith, it was as is always the case, the parents of damaged children who addressed the question of how the professor had arrived before the tribunal and the injustice of it. The first testimonial below is from a number of the parents whose children were cited in the Lancet paper and the second from Isabella Thomas, an indefatigable campaigner on behalf of her children and the accused doctors:
'We are writing to you as parents of the children who, because of their symptoms of inflammatory bowel disease and associated autism, were seen at the Royal Free Hospital Paediatric Gastroenterology Unit by Professor Walker-Smith and Dr Simon Murch with the involvement of Dr Andrew Wakefield on the research side of their investigations. Our children became the subjects of a paper published in The Lancet in 1998.'
'We know these three doctors are being investigated by the General Medical Council (GMC) on the basis of allegations made to them by a freelance reporter. Among the many allegations made are the suggestions that the doctors acted inappropriately regarding our children, that Dr Wakefield ‘solicited them for research purposes’ and that our children had not been referred in the usual way by their own GPs. It is also claimed that our children were given unnecessary and invasive investigations for the purpose of research and not in their interest ... this was not so. All of our children were referred to Professor Walker-Smith in the proper way in order that their severe, longstanding and distressing gastroenterological symptoms could be fully investigated and treated by the foremost paediatric gastroenterologists in the UK. Many of us had been to several other doctors in our quest to get help for our children but not until we saw Professor Walker-Smith and his colleagues were full investigations undertaken. We were all treated with the utmost professionalism and respect by all three of these doctors. Throughout our children’s care at the Royal Free Hospital we were kept fully informed about the investigations recommended and the treatment plans which evolved. All of the investigations were carried out without distress to our children, many of whom made great improvements on treatment so that for the first time in years they were finally pain-free.'
'We have been following the GMC hearings with distress as we, the parents, have had no opportunity to refute the allegations. For the most part we have been excluded from giving evidence to support these doctors whom we all hold in very high regard. It is for this reason we are writing to the GMC and to all concerned to be absolutely clear that the complaint that is being brought against these three caring and compassionate physicians does not in any way reflect our perception of the treatment offered to our sick children at the Royal Free.'
'We are appalled that these doctors have been the subject of this protracted enquiry in the absence of any complaint from any parent about any of the children who were reported in the Lancet paper.'
* * *
'I just wanted to tell you how dismayed I am that Professor Walker-Smith is in the position of being attacked over the care he gave to my boys. I believe all those tests were indicated, especially with the symptoms the boys had. He was one of the best doctors the boys had ... The problem with the GMC is that they have not asked how the children are now. Because of the GMC hearing doctors are afraid to treat our children and I had to take them for treatment to the USA.'
'... I would like to thank Professor Walker-Smith with all my heart. If he and the others had been allowed to continue treating our children then Michael and Terry may not be suffering so much pain now and their other problems would have been picked up much earlier.'
I am saddened that I was not allowed to give evidence on behalf of my boys and was upset to hear the lies about my family from the other side. I felt we did not have a voice and my boys were not protected in this.'
The testimony above from the parents was to raise serious questions in the hearing later in the day, which goes to show that throwing stones does create ripples and that it is more effective sometimes to use strong words and shout rather than whisper your case.
Following the mid morning break, after everyone had filled back into the hearing room, Smith strode stern-faced up to Mr Miller's table and entered into a seemingly angry exchange with him. One observer in the public gallery with exceptional hearing said she definitely heard Mr Miller say 'I am not going to recant'. Clearly Smith wasn't happy about something and it seems more than probably that Isabella's statement, that including the word 'lies', could have offended Smith's professional sensibilities.
If it was this, one can't help but wonder at the preciousness with which these people see themselves, they legally assault three notable, hard working and honest doctors, ruining their reputation and careers; they infer that thousands of badly injured vaccine damaged children do not exist, while intimating that their parents have at the best misjudged their children's illnesses and at worst been untruthful to doctors in order that they might make money from a legal claim against pharmaceutical companies; then appear mortally hurt when someone says that they have lied. These marauding legal mercenaries carrying arms for corporations live in a mirror world where the right people are wrong and the wrong people are always right.
Later in the morning, seemingly after some matters had been brought to his attention, the Legal Assessor made a two-part intervention that grew out of the parents' testimonial. First he made the exacting grammatical point that when Mr Miller read out testimonials which disputed the 'carved in stone' factless facts endorsed by the panel in their findings, he should be careful to always qualify, as he had done in this case, testimonial statements with the word 'they say' - meaning the writer of the testimonial - in case the panel were of the opinion that Mr Miller himself endorsed such a disagreement with the panel's findings. The assessor used this point to address the panel on the fact that as far as the hearing went, the panel's truth was an indisputable truth and no other truth held weight.
But it was the next part of his intervention that related directly to Isabella's letter and cast an interesting light on the enclosed way that the prosecution thinks.
'Mr Miller', the Legal Assessor said, 'before you move on ... I have been asked a question and I just want to indicate what I have said. One of the Panel members asked me where it says in the previous document, about which I made comment (the testimony of the parents of the Lancet paper children), "For the most part we have been excluded from giving evidence, whether the panel is entitled to know who excluded us." I have advised no. How witnesses come to be called is not a matter for the panel and who is or is not selected is not a matter for the panel.'
Of course, no one could argue with the Legal Assessor in his judgement of this matter. Why should the prosecution be made to explain to the panel why the parents were not called to talk about the health of their children? This would be as patently absurd as suggesting that the defence to explain why they didn't call the parents to support the case of the doctors. It would have been interesting to hear the Legal Assessor's proof of this ruling; perhaps he might have alluded to Smith's much earlier statement in the Hearing that what everyone was involved in was an 'enquiry' and not a trial.
But on the whole, one has to agree wholeheartedly with the Legal Assessor, no jury should be allowed under any circumstances to know or even question such things as: who made the initial complaint about the doctors to the GMC, this should always be hidden; why Brian Deer, whose hack writing provided the basis for the charges, was not called to give evidence; or why parents who appear in the prosecution case as being to some extent victims of the doctors unethical action were never called to give evidence. The answer to this last question should naturally be kept a complete secret. For the GMC to give any such information to the jury would be to clearly encourage a contempt that might lead the panel to make a wrong finding.
After the break, Mr Miller read out another eleven testimonials, including those from a Professor citing John Walker-Smith's skill and devotion. Listening to all this praise heaped upon Walker - Smith one was forced to wonder who will write such testimony in favour of Ms Smith, come the day in the not too distant future of the Vaccine Truth and Reconciliation Hearings. If I had to hazard a guess I don't think even her milkman would find time to pen her praises.
* * *
The first character witness Mr Miller called was Professor Sir Christopher Booth, who had first got to know Professor Walker-Smith after Walker-Smith arrived in London from Australia. This was at the beginning of 1960’s, 1962.
'At St Bartholomew’s Hospital I knew from discussions with colleagues and friends how very highly he was regarded in respect of his work. He was, in my experience, a man of the highest integrity. He is a very committed Christian and utterly devoted to his church. He is a man I would trust completely with the treatment of my children, a man who I do not think would ever harm anybody. The idea that he should be in any way held guilty of anything of any sort which is discreditable is to me completely unbelievable.'
Sir Christopher mentioned Walker-Smith's writing; 'Writing a textbook is a hard job and he wrote his book on diseases of the small intestine some years ago. It has now gone through four editions. It has had a major impact on teaching of the subject internationally. It is the only book in the world to do with that particular area and it is beautifully written and an extremely good book.'
Surprisingly, Sir Christopher made it absolutely clear that he did not believe that Professor Walker-Smith had been conducting research and made a call for consultants to play the primary role in decisions about clinical work.
'I think the other problem that comes out of that is if you want to do, say, an endoscopy in a child, who makes the decision that it is appropriate? It should be the consultant physician in consultation with the parents themselves and that is how it should work. The idea that ethical committees interfere with that relationship is, I think, wrong.'
* * *
Dr Heuschkel from Cambridge was the next character witness and the hearing managed to squeeze him in before the lunch break so that he could return to an afternoon clinic. Dr Heuschkel is a member of the Royal College of Paediatricians and Child Health. Dr Heuschkel gave evidence to professor Walker-Smith's collective approach to work in a hospital. Although Heuschkel's evidence didn't appear to do that much for Walker-Smith, in terms of the case as a whole it was considerably pertinent. Between the lines he was casting doubt on the suggestion deeply embedded in the prosecution case that Wakefield, or Wakefield, Murch and Walker-Smith had sneakily conducted research in dark corners at the Royal Free. 'One of the striking things about John Walker-Smith was the importance that he put on running the unit within a team, within what we now take for granted, within paediatrics as part of a multidisciplinary team. Complicated patient decisions were discussed as a team, management decisions were carried out by a team. He interacted openly and fairly on a regular weekly basis with all members of the team, from the most junior to the most senior, in discussing research, in discussing patient care, and his approach to patients in clinic was one that I still follow now. We all see patients independently in the afternoon and we will come together after a clinic to share the decisions that we have made, to discuss those decisions, and to ensure that we all are making decisions in the best interests of the patients.'
Dr Heuschkel's single statement on behalf of Professor Walker-Smith was pointed. When asked if he could see Professor Walker-Smith putting the clinical interests of a patient, a child patient, secondary to research? He answered determinedly, 'In no way whatsoever.'
* * *
Following lunch, Mr Miller introduced Professor Allan Walker who suggested that Walker-Smith was considered an expert on a global basis. 'John is one of the most revered paediatric gastroenterologists in the world. Finally, and I believe you may already be aware of this because it was in the letters that you got, John has been given a distinguished achievement award by the European Society for Paediatric Gastroenterologist and Nutrition and, to my knowledge, this is the first time that it has ever been given, a lifetime achievement award, to a paediatric gastroenterologist. I think that underscores the view of John Walker Smith as a paediatric gastroenterologist on a world wide basis.'
* * *
Professor Sir Nicholas Wright, was the final witness to appear in person, the Chairman demoted Sir Nicholas into a common doctor and Mr Miller had to retrieve his reputation: 'It's Professor Sir Nicholas Wright, I think', Miller said to the Chairman. Perhaps it was the case that the chairman thought this devolution of Sir Nicholas's professional position would rub off on the Panel. But Mr Miller was quick to show that Sir Nicholas was right at the top of medical tree; Warden of The Barts and London School of Medicine and Dentistry after having been the Deputy Principal of Imperial College School of Medicine, and prior to that, Dean of the Royal Postgraduate Medical School at Hammersmith.
Sir Nicholas's evidence was straight to the point. 'I think Professor Walker-Smith has an extremely high reputation. He really is one of the founders of the paediatric gastroenterology specialty. He was held in the highest regard, and I think anybody who has known him will regard that as a privilege because he has a reputation of the highest standards, both of intellectual behaviour and integrity. He has been particularly praised by the European Society in them giving him a lifetime distinguished achievement award for his care of his patients and the care he takes with looking after them, so I have always regarded him as being an extremely worthy individual.'
* * *
Wednesday the 14 April 2010 was the 200th day of the hearing. Like that on behalf of Professor Walker-Smith, the pleading on behalf of Professor Murch was fairly short, beginning and ending on that day. As well as the reading of testimonials, Mr Hopkins called three character witnesses, who appeared in person, on behalf of Professor Murch: Edward Piele, Robert Green and Allison Rodgers.
The first testimonial read for Professor Murch came from Professor Carter, the former Dean of Warwick medical School where Professor Murch is now employed as Professor of Paediatrics and Child Health. Unfortunately, Professor Carter died not long after writing the testimony in September 2009. One was reminded of how short human life was, and how much damage the GMC prosecution had done to the three defendants lives and careers. Professor Carter's testimonial described Professor Murch as a man with 'a kind and gentle nature, ideally suited to working with students and teachers. Despite the intense pressure of the GMC proceedings, the time-commitment required and the effect on his self-esteem, he remains conscientious about his patient lists and academic responsibilities'.
Professor Edward Basil Piele was next sworn in and examined by Mr Partridge, Mr Hopkins junior. Piele was a fellow of the Royal College of Physicians, a fellow of the Royal College of Paediatrics and Child Health, a fellow of the Royal College of General Practitioners, a fellow of the Higher Education Academy, a fellow of the Academy of Medical Educators and the former Associate Dean for teaching at Warwick Medical School. His current title was that of Professor Emeritus of Medical Education at University of Warwick.
Piele was one of the people who interviewed Professor Murch for his present job at Warwick, but despite have an interesting name, Piele said perhaps slightly less than your average family Labrador would say in favour of its master.
'I think the things that impressed me most were the degree of rigour and care that Professor Murch gave to appraising the appointment coming to the Medical School. At that level it is usual for candidates to make preliminary visits but I think Simon Murch stood out because he had prepared his questions very searchingly'.
Mr Partridge then read the testimony of Dr Diana Rutter, consultant paediatrician:
'I have known Simon Murch for more than 10 years as a respected paediatric gastroenterologist. He has been a speaker at many meetings both national and international on clinical and academic topics associated with gastroenterology ... I have also undertaken some of his out-patient clinics when he was unavoidably absent with the requirement that he attend the GMC hearings. At these clinics I, of course, saw patients that he was already managing. Many of these families were able to make quite long journeys to ensure that their child remains under Professor Murch’s management.'
The next witness in person to be examined by Mr Partridge was Dr Michael Robert Green. Green, a consultant paediatrician and gastroenterologist at the Children’s Hospital, Leicester Royal Infirmary, for almost twenty years, said that Professor Murch was clearly a very committed clinician ... 'I have certainly never had any concerns. In fact, the very opposite: he is clearly hugely committed. What is very clear from seeing his patients is that he listens to the histories that are being given to him and tries to interpret them, I think in a much more careful way, I think I could honestly say, than I have ever come across before ... Professor Murch, I think – and you see this when you do his clinic – has a hugely analytical mind and will try and find causes for symptoms that others might ignore.'
It was always the case throughout the hearing that medically lay observers could learn a great deal from those who gave evidence. Although Smith and the lay individuals on the panel are unlikely to have been listening hard enough to pick up the intonations in Green's evidence, what he was saying was of great concern to this case. While the likes of Smith and Deer and a whole army of pragmatic material skeptics dismissed the defendants as quacks, here was an uninvolved consultant bringing to the fore the post-modern concept of 'interpretation' of signs, symptoms and the patient narrative. Dr Wakefield had mentioned this with the discussion of the histology samples, but it had never been explored. Yet it was in some respects the key to the defendants' complete innocence of the charges.
Parts of two testimonials were then read out on behalf of Professor Murch, from Professor Levin, the Professor of International Child Health at the Imperial College in London.
'I am aware of the findings of fact from the Fitness to Practise Panel concerning Professor Simon Murch. I am writing to convey to the panel the extent to which their findings in relation to Professor Murch’s participation in the investigation of patients included in the discredited Wakefield research, contrasts with his professional activities in both care of patients, research and teaching in the rest of his career.'
'I have the highest regard for Professor Murch’s integrity, honesty, long-term commitment to providing the highest professional standards to the patients under his care as well as to their families and the medical and nursing staff with whom he works. From my long familiarity with Professor Murch’s work I am happy to confirm that his interactions with both professional colleagues and patients are conducted with the highest degree of kindness, sensitivity and decency. His care of patients is always administered with compassion, sensitivity and commitment to the patients and their families. I believe his scientific work has been conducted with a commitment to research being used for the benefits of patients.'
'Having read the findings of fact from Fitness to Practise Panel, it seems clear that the conclusions of the panel in relation to Professor Murch’s involvement in the investigation of patients included in the Wakefield study, stands in complete contrast to his dedicated and committed care of patients and commitment to ethical conduct of research which has characterised the remainder of his clinical career.'
Good for Murch but gratuitously bad for Dr Wakefield. During my twenty years of para-legal work, especially on behalf of those wrongfully arrested and wrongfully imprisoned, I learned to take very exacting statements. In fact, statements - the defendants or witnesses narrative are at the very heart of the judicial idea. During these years I learnt that statements were always taken and never given, in case the untutored mind of the witness or defendant might inadvertently say something that was true but contextually detrimental. I would never have let Professor Levin state that, 'Professor Murch’s participation in the investigation of patients included in the discredited Wakefield research'. Clever as it is might be to kick Wakefield under that table, the statement was not true from the defence perspective and anyway it blew back on Murch as well.
One of the things which comes across very clearly about Professor Murch is his kindness and his liking for his patients and their children. 'Professor Murch upheld high ethical standards and always dealt kindly and compassionately with patients and staff.' The following is a good example of the semantic gymnastics employed by colleagues of Professor Murch:
'I have read the findings of the GMC decisions on Professor Murch and I am aware that he has been found guilty of performing a number of colonoscopies on children for research purposes, without ethical permission. I would regard these findings as an unfortunate departure from a career, which in my observation, has been exemplified by a character of highest ethical standards, together with the highest academic standards.'
One's answer to all the testimonials read on behalf of Professor Murch was the same and very straightforward, at least in my case. If this man was as principled and as ethically correct, as gentle and kind as everyone said he was and from my observations and contact with him, he clearly was, why did he allow his lawyers to inveigle him into this gross and ugly process of apologia?
After lunch Mr Partridge examined Alison Jane Rodgers, a senior lecturer in infectious diseases at University College London, who had taken her son to see Professor Murch when he was a baby.
'It was an astonishing relief for both my husband and I, even from the first consultation with Simon. He took a very careful history, he examined my son, he listened to our concerns and he said immediately, “Your son has severe food allergies which are probably causing inflammation within his intestine”. The difference in my son’s health within a matter of weeks was truly astonishing.'
* * *
In his closing submission, on Tuesday, Mr Miller went back over the areas of charges against Professor Walker-Smith. Although there was some shifting of blame to Dr Wakefield, it did tend to be in areas where there had been a real disagreement between the two doctors, such as over the Press Briefing, that Professor Walker-Smith refused to attend. However, one could not but be struck in the case of Walker-Smith and that of Simon Murch that it often appeared convenient for both men to shift blame onto Dr Wakefield. It would seem important to me that we put both their cases in context and understand that for a couple of years after the Lancet paper, all three doctors were continuing to work clinically on cases which came to the Royal Free. Only when Brian Deer hit the fan in 2004 and the GMC began preparing charges, did everyone appear to turn on Dr Wakefield.
Mr Miller made the point that when the Panel announced their findings in January, most people would have been hard pressed to find any mention of Professor Walker-Smith or Professor Murch in the report of the proceedings. He made the point that the Panel must not bracket all or any of the doctors together when you consider the seriousness of the findings that have been made.
As Mr Hopkins was later to do on behalf of Professor Murch, Mr Miller began with a couple of points that severed connections between Wakefield and Walker-Smith. Professor Walker-Smith was first and foremost a clinician. 'His motivation – and again what you have heard this morning testifies to this – was to alleviate the suffering of children suffering from bowel problems, and that has been his concern virtually for the whole of his medical career.'
Secondly Miller asked the Panel to dismiss from their minds the implied suggestion that Professor Walker-Smith became involved in investigating the Lancet children because he wanted to prove that MMR caused autism and bowel disease. Mr Miller made it clear, as again Mr Hopkins was to do, that Professor Walker-Smith was an old school paediatrician who was absolutely in favour of vaccination in general and MMR in particular. He constantly shied away from publicly raising any alarm about the role of MMR.
It was while listening to mitigation for Professor Murch and Professor Walker-Smith with Dr Wakefield missing, that one realised just how deep was the divide between the two professors and Dr Wakefield. And both counsel and the other defedants seemed to play on these differences, almost as it were, blaming Dr Wakefield for having pulled the case down on everyone.
Mr Miller drew attention to the “press briefing”, and suggested that it was then, not with the publication of the Lancet paper that 'everything went wrong'. The real damage was caused when Dr Wakefield took it upon himself to promote the adoption of monovalent vaccines, which was nothing to do with the paper. While this was an accurate reading of the situation that separated his client from Dr Wakefield, it went no way to reiterating the fact that the chain started with Zuckerman, who had set Wakefield up to pronounce on the single vaccine and actually farmed out a journalist's question to him.
Mr Miller moved on to the point that there has been no formal complaint made to Walker-Smith by any patient or his or her family (not only from the original Lancet parents but also from the tens or hundreds that followed them). He mentioned the one Lancet parent that had been called yet still referred to her as Mrs 12. Other parents might have wondered why he didn't tell the panel that she had been duped by the prosecution to attend the hearing, after being told that she would be giving evidence for the defence. And, of course, he could have chosen this time tell the panel why the defence themselves had not called the parents.
Mr Miller shed a sudden light on a matter that, I have to admit, I had missed. He told the hearing that the reason the prosecution had given for not calling the parents was that it was the child who was the patient and not the parent. Not only is this a growing trend in Britain of state loco parentis - the state assuming rights over the child while depriving the parent of those same rights - but fortunately for the GMC the cited in the Lancet paper were either non-verbal or anyway too young to be able to give evidence. From the point at which the law took responsibility for the children, everyone was expected to believe that Smith and the GMC had a greater concern for their welfare than did their parents.
When it came to criticising expert witnesses, Mr Miller's submission also served Dr Wakefield. Of Professor Booth Mr Miller suggested that it was wholly inappropriate to rely on Booth's evidence that parents may lose objectivity when the panel had not seen or heard the parents. It was clearly the case, said Mr Miller, that parents of damaged children knew those children better than anyone.
Not only had none of the parents of the hundreds of children who had passed through the hospital complained, but there had been no complaints either from Professor Walker-Smith’s employers or colleagues that he behaved unethically, with duplicity or contrary to the interests of his patients.
If Professor Walker-Smith had 'jumped the gun' in starting a research project without ethical approval, said Mr Miller, then so did everyone else, all the authors of the paper and anyone who had examined the children. Mr Miller stressed not only this but the point that what he had then begun to call 'a research project' - despite it not actually existing - was not secret and did not take place behind closed doors.
'We say that the correspondence reflects Professor Walker-Smith’s genuinely held view that the only investigations which would be carried out in his department would be those which would offer some clinical benefit of whatever type to the children.'
'Second, there is no evidence to suggest that any other clinician within the Royal Free believed that Professor Walker-Smith’s department was not offering normal clinical care: quite the contrary.'
'Fourth, the testimonials demonstrate that it would have been wholly out of character for Professor Walker-Smith to subordinate the interests of one of his patients to a simple research agenda. When I asked that question of Dr Heuschkel, he said he could not see it happening.'
At this stage, Mr Miller began to argue a second hand case, that the only investigations that had taken place were clinical and for diagnostic reasons. But what can you do when the jury has been led to the fuzzy end of the lollipop and are determined to believe a completely unevidenced prosecution case? Mr Miller pointed out the fallacy in the fact that children seen clinically also had biopsy material taken under Professor Walker-Smiths ethics committee approval 172/96.
'Finally, we note that you found many of the Lancet children were investigated under 172-96 despite the fact that they did not meet the inclusion criteria for that project. Such inclusion criteria would include the manifestation of disintegrative disorder or the fact that they had been vaccinated with MR rather than MMR vaccine. However, sir, we fail to understand the real gravity of this allegation.'
Following the afternoon break, Mr Miller found himself arguing the relative safety of the processes carried out or instructed to be carried out by Walker-Smith. On colonoscopy he said, 'we ask you to bear in mind the abundance of evidence that you have heard concerning the safety of colonoscopy. It is clear from the literature and the oral evidence, first that the objective risk of complications is extremely low; secondly, in this unit, the complication rate was zero in 1996 to 1997 when the colonoscopies took place; thirdly, the most important factor, is the skill and experience of the endoscopist who carries out the endoscopy.'
Finally, said Mr Miller, Professor Walker Smith had in Dr Murch and Dr Thompson two of the most highly skilled paediatric colonoscopists in the country. On the issue of lumbar puncture, Mr Miller repeated to the Panel another of their absurd decisions. 'You have found that Professor Walker Smith caused two of the children to have a lumbar puncture which was not indicated. Again, we invite you to bear in mind the evidence of Dr Thomas, the only paediatrician neurologist called in these proceedings on the safety of lumbar punctures. He said: 'Yes, I think it is considered to be a safe procedure.'
Mr Miller again addressed the question of transfer factor that appeared to have been given to child 10 with the full permission of his parents as an experimental treatment. 'It is difficult', Mr Miller said, 'to see how this could be a serious allegation laid at Professor Walker-Smith's door, because the treatment was not given by him and he was unaware of the circumstances in which the child got it'.
Mt Miller ended with a run-down of professor Walker-Smith's career.
'It is striking to see quite how influential he has been. I say that because you see – and to some extent I have seen – a modest man giving evidence before you – and in my case he is my client but I say a modest man – and yet from what we have heard this morning it is a truly astonishing set of reminiscences and kind words from so many people from so many different parts of the world.'
I do think if the choice had been mine that I would never have subjected myself to this almost humiliating excusing of the role that I had played in the heroic diagnostic work done at the Royal Free. It isn't simply that the whole chimaeras case is a creation of Big Pharma, it is also the fact that I would know that I and the other defendants were public spirited National Health Service workers and our careers, even our lives had been ruined by mercenary profligate prosecutors whose interest in the case was driven by meanly motivated private interests.
* * *
The rumour around town is that Brian Deer is going through considerable mental turmoil at the moment. Certainly when he appeared at the Hearing briefly on Tuesday looking like a trailer park resident in grey jogging bottoms and trainers, it did look as if the three year Hearing had taken it's toll on any sense of the sartorial, he might originally have had. When he jogged out of the glass building, it was rumoured that he was just about to launch other possible three year cases against other doctors and he was in training for this, others said that listening to the wonderful testimonials given to JWS by great medical figures, had finally tipped him into insanity as he tried to deal with immense damage he had done to a great physician.
* * *
The introduction to Mr Hopkins concluding submission on behalf of Professor Murch on Wednesday was strong and determined yet completely undermined by the fact that the stable door had been open for almost three years and the horse had already bolted and the thought upermost in my mind, was that Mr Hopkins should have been out on the fells looking for it and supporting evidence rather than excusing his client in this tomb of a hearing room.
It was clear from the beginning of the day, that Pofessor Murch being the youngest and least advantaged of the defendants, would not be able to draw upon the same stature of character witnesses as had Professor Walker-Smith. It was relatively clear also, that Professor Murch would even more be enticed into a scratch-face defence.
Mr Hopkins, began his submission by going through all the areas within which Professor Murch had been found guilty, he then argued each area outlining general reasons why and how these findings might be explained and in some ways excused. Mr Hopkins went over much of the defence case again, presenting it this time as a mistake, that did not come within the realm of 'serious' or 'professional misconduct'
For example, he argued that if the Panel had found that errors were made by the defendant, those errors were shared ones across the team - even across the whole hospital staff - working on the children's cases. There was a sharing of advice, a sharing of clinical work, even a sharing of decision making on the diagnostic research and consequently there had to be a shared responsibility. Wrestling with this argument for a moment, I was tempted to believe that Mr Hopkins was suggesting that all the authors of the Lancet paper should perhaps have been brought before the GMC to be pronounced guilty.
'So we say', Mr Hopkins said, 'In these circumstances it is understandable that Dr Murch was reassured by and acted on the advice of his peers and more experience colleagues.' So, professor Murch was led astray by his elder and more experienced colleagues. I must admit to very slightly tearing-up at this point.
And, as silly as this seems, it has undoubtedly been one of the GMC's major problems throughout this protracted trial, that the Experimental Gastroenterological Unit at the Royal Free Hospital, was staffed by a large number of medics and during their clinical work, especially the diagnostic work they called on many specialists in surrounding departments of the hospital. The question of whether these professionals, camoflaged the wrong doing of Dr Wakefield, Professor Murch and Professor Walker-Smith or whether either openly or subliminally they struck deals with the GMC prosecution, not to be charged themselves, has to be raised.
'Even if you conclude that Dr Murch made an error of judgment' hammered on Mr Hopkins, 'about the clinical rationale for the colonoscopies on five out of the six children referred to him for this procedure, the context for his decision-making was a department that made frequent use of this investigation to enable a secure tissue-based diagnosis to be reached for the benefit of the individual patient.'
This is of course what is so hateful about the bogus legal procedure at the GMC, in order to get back to work, or to be able to work ever again in the face of a Big Pharma get-up, the defendants have to agree with the ruling of the Panel, however grossly wrong it might be, however criminal might have been the ignorance with which it was informed.
Mr Hopkins defended Professor Murch as a large bosomed woman at a blood- doners-charity cake stall might have defended her hyperactive grandchild. 'If', he said, 'You find this was an error of judgment by him, then you may think it is understandable how it arose.' Covered quickly with the fact that 'any such misjudgement is not in the ballpark of serious professional misconduct.' Mr Hopkins presented professor Murch's case as part mistake, part ethical stumble, part poor boy naiveté.
Some of the excuses offered by Mr Hopkins on professor Murch's behalf were as they say, almost 'cringe-making'. Professor Murch, as Professor Walker-Smith had, raised the matter of Professor Murch's heroic defence of MMR and public health policy following the publication of the Lancet paper. 'Dr Murch took a responsible position in public to support the continued use of MMR. Mr Hopkins drew our attention to Professor Zuckerman's evidence in relation to Dr Murch’s statements at the press briefing :
Q: And you have told us that he strongly supported the continued use of MMR; is that right?
A: Yes, very strongly; indeed, vigorously.
Of course it might be that any man would have another stand up in front of him and slip him out of a hanging, but isn't 'strongly supporting the continued use of MMR' selling ones soul, even in mitigation, at slightly too high a price.
* * *
It has to be realised, inevitable that this two day scramble for sainthood, is in a sense a virtual and not a real matter, a little like having 'friends' on facebook. On the other hand I couldn't help but be reminded of the beaten faced professional criminals I had watched at Old Bailey trials as they sat in the dock listening to their local vicar speak in their favour, 'And I remember the occasion when Billy was much younger and he helped Mrs Arbuthnot across the road outside the church and I can't help but feel that it is quite unbelievable that he should more recently, have threatened to throw acid in the face of the three security guards and then set one on fire with lighter fuel, sadly failing to put him out even when he did open up the security van'. Not that these cases were in any manner similar, just that the dissembling indulged in defeat, though all a part of the Grand-Guignol, is somehow demeaning when adopted on behalf of professional men who have done great work, and who should not only have not been found guilty in the first place but should in the second have refused arguments in mitigation on the grounds that their consciences were clear.
Mr Hopkins went on at some length about the nature of Professor Murch and then veered into the argument that the hearing had gone on for far too long and how this was relevant to any discussion over 'sanctions'. I am pondering whether to send him a request that he donate at least half of his earnings from the case, to Cry Shame the parent's organisation.
It wasn't long, before Mr Hopkins arguments in this final submission, slipped into the maudlin. He told the panel how much the farrago had cost Professor Murch and then segued into the toll that the hearing had had on his family life and was clearly going to have on his professional commitment and his identity. Then Mr Hopkins threw another log of sentiment on the fire with his own anecdote about Professor Murch's condition.
'I want to give you another quote of something he said to me when I asked him to reflect on what impact this case had had. He told me: “I am not the same person I used to be. It is going to take me years to pick up my life again. I feel the prime years of life have been robbed from me'.
For a moment I thought I heard the strains of a violin rising from the pavement below where a one armed violinist was busking. A small cardboard notice at his feet told his sad story in a hardly readable scrawl 'doctor left for destitute by the GMC'.
But why didn't Mr Hopkins on the instructions of Professor Murch state clearly that his lamentable psychological condition was caused entirely by unprincipled people who had conspired against him, in a cruel and unjust world where Big Pharma and politicians covert money more than they feel for life.
* * *
The Legal Assessor addressed the Fitness to Practise Panel, sitting as the Professional Conduct Committee, saying that they were now required to:
'consider and determine whether, in relation to the facts proved in proceedings under rule 27, and having regard to any evidence adduced and arguments or pleas addressed to you under rule 28, you find the practitioner to have been guilty of serious professional misconduct.'
He reminded the Panel that no evidence has been adduced and no arguments or pleas in mitigation have been addressed on behalf of Dr Wakefield,. 'In fact' he told the Panel, Mr Coonan specifically said to you:
'... we call no evidence and we make no substantive submissions on behalf of Dr Wakefield at this stage.” “... I am instructed to make no further observations in this case'
Clearly, whether or not this 'turning his back on the court' has affected in any way the already determined path of the GMC, Brian Deer, the government or the pharmaceutical companies, to totally destroy Dr Wakefield, is a very mute point, however it is entirely clear that this was the most principled thing that a defendant in such a trial might do.
The Panel will next sit on Monday 24 May 2010 at 9.30 a.m. although it was completely unclear as to whether this was a public session or one in camera.
Martin J Walker is an investigative writer who has written several books about aspects of the medical industrial complex. He started focusing on conflict of interest, intervention by pharmaceutical companies in government and patient groups in 1993. Over the last three years he has been a campaign writer for the parents of MMR vaccine damaged children
covering every day of the now two year hearing of the General Medical Council that is trying Dr Wakefield and two other doctors. His GMC accounts can be found at www.cryshame.com, and his own website, where you can purchase Silenced Witnesses Volumes I and II, is www.slingshotpublications.com.