A comment posted by Brian Deer earlier this month on the Orac blog about the 2012 appeal of Prof John Walker-Smith – Andrew Wakefield’s senior colleague - against the GMC findings two years earlier has been forwarded to me and can be read beneath my comments.
The most fundamental flaw in the General Medical Council (GMC) case – thrown out in the instance of Prof Walker-Smith who unlike Wakefield received funding to appeal – originated with the incompetence or malice of Deer himself. It was the claim that the Wakefield Lancet 1998 paper rather than being an early report of cases seen and investigated of the basis of clinical need as it stated, was conducted under a protocol for a study to be funded by the United Kingdom Legal Aid Board (sometimes referred to as Project 172-96). Once the GMC accepted this false and absurd claim – which originated in Deer’s hidden complaints to the body - it was destined to unravel under any careful judicial scrutiny, and what was untrue for Walker-Smith was also untrue Wakefield, not to mention the Prof Simon Murch, the third doctor to fall under this GMC prosecution. The crux lies with Mr Justice Mitting’s observation:
Its conclusion that Professor Walker-Smith was guilty of serious professional misconduct in relation to the Lancet children was in part founded upon its conclusion that the investigations into them were carried out pursuant to Project 172-96. The only explanation given for that conclusion is that it was reached “in the light of all the available evidence”. On any view, that was an inadequate explanation of the finding.
At the Walker-Smith hearing the GMC counsel, Joanna Glynn QC, came under pressure from the judge to provide an explanation, and she was unable to do so. After two and half years of the hearing the GMC were unable to offer an explanation, and two years further on they were unable to do so again before a High Court judge. The GMC would have had ample warning of the substance of the Walker-Smith appeal and yet they could not, when the chips were down, provide arguments to counter it.
Equally, having failed the challenge of providing the missing arguments they were scarcely in a position to challenge Mitting’s ruling. Deer enters into absolute fantasy when he states:
The panel could have reconvened after the judge’s ruling, supplied its reasoning in more lengthy statements, and struck Walker-Smith off again.
Well, obviously it could not, firstly because there was no reasoning and they had already failed to provide any when given the chance, but also because even by the GMC’s peculiar legal standards that would stand outside any normal process of law: its findings had already been quashed.
Deer waffles obscurely about legal precedents but at the centre of the collapse of the case is the absence of evidence, because either inadvertently or deliberately he had made the whole thing up and the GMC swallowed his nonsense hook, line and sinker.
The reality is that the whole British establishment knew the prosecution was mistaken and ill-founded, and in the end they were forced into covering up their own errors, in an increasingly unconvincing manner – not least the obscene manoeuvrings of the British Medical Jounal.
May 5, 2017
@ Julian, # 204
The subtlety is that Walker-Smith was a clinician, so he could at least argue that clinical care was his primary motivation. In fact, it wasn’t. There are masses of documents, including his autobiography, and formal statements issued through the Lancet in response to my first reports, making is crystal clear that they were conducting clinical research.
However, the way the GMC operates, the doctors were able to change their story after the GMC prepared its case, and now the clinicians argued that the research project was never carried out. Walker-Smith then proceeded to retrospectively diagnose clinical indications for colonoscopy, even for kids he’d never seen before they were scoped. That’s why the hearing went on for so long, when it was originally scheduled for 16 weeks.
The GMC panel’s central failing (as the judge makes clear) was to fail to set out in their findings a clear train of reasoning by which they came to their conclusions. This doesn’t mean that they didn’t have reasoning, just that they failed to set it out, merely giving one-line decisions as the GMC had done for many years. There was a court of appeal ruling on precisely this point in between the time the GMC reached its conclusions and when it issued its strike-off sanctions.
There were a few factual things that Mitting disagreed with, some of which could have been appealed. For example, he concluded that, since the panel said that “consecutive” had a certain meaning for the “ordinary reader”, he, the judge was an “ordinary reader” and he read it differently. The GMC could easily have appealed on the basis that it had plainly meant the ordinary reader of The Lancet: which would be a doctor or scientist, not the ordinary “man in the street” that Mitting meant.
The panel could have reconvened after the judge’s ruling, supplied its reasoning in more lengthy statements, and struck Walker-Smith off again. However, he was 73 by this time, and there would be real issues concerning risk to his health by continuing to pursue him. The judge commended them for this decision.
None of this is true for Wakefield – a laboratory researcher with no rights to clinical practice – whose own legal team recommended that he not be supported in an appeal. Since he wasn’t a clinician, he had no analogous defences to Walker-Smith, and there were four charges of dishonesty found proven against him, and none against Walker-Smith. There was also him buying blood from children at a birthday party, and ordering tests on children when he was not authorised or qualified to do so.
The irony of Mitting’s judgment is that he fell into the same trap as the GMC. The material is so extensive and technical that he failed to set out the background to his own decisions, and rulings handed down from the court of appeal about the GMC’s approach to charges. By failing to cite any precedents whatsoever (which is very unusual in court judgments), he cut corners in such a way that non-lawyers would find it hard to understand quite what he was talking about: especially with regard to the reasoning issue. He would have done well to look at the work of more senior judges who have looked at such issues, and cited their precedents, so people could follow the thread.
Nevertheless, I’m a professional journalist, and am professionally obliged to respect courts (which have always been very good to me, never criticising me or my work in any way whatsoever). In this case, my respect includes certain knowledge (including with an opinion from leading counsel) that the Mitting judgment has no application to Wakefield, who would never be allowed his license back, no matter what. His striking off is final, irrevocable, and his conduct at the time and subsequently means the chances of him ever being readmitted to the register is less than zero.
John Stone is UK Editor for Age of Autism.