Medicine, Medea and the Media
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Bad Medicine: Parents, the State, and the Charge of “Medical Child Abuse”
Bad Medicine: Parents, the State, and the Charge of “Medical Child Abuse” ∗ Maxine Eichner † Doctors and hospitals have begun to level a new charge — “medical child abuse” (MCA) — against parents who, they say, get unnecessary medical treatment for their kids. The fact that this treatment has been ordered by other doctors does not protect parents from these accusations. Child protection officials have generally supported the accusing doctors in these charges, threatening parents with loss of custody, removing children from their homes, and even sometimes charging parents criminally for this asserted overtreatment. Judges, too, have largely treated such charges as credible claims of child abuse. ∗ Copyright © 2016 Maxine Eichner. Graham Kenan Distinguished Professor of Law, University of North Carolina School of Law; J.D., Ph.D. I am grateful for comments from and conversations with an interdisciplinary group of readers: Alexa Chew, J.D.; Christine Cox, J.D.; Hannah Eichner; Keith Findley, J.D.; Victor Flatt, J.D.; Michael Freeman, M.D., Ph.D., M.P.H.; Steven Gabaeff, M.D.; Mark Graber, M.D.; Heidi Harkins, Ph.D.; Clare Huntington, J.D.; Diana Rugh Johnson, J.D.; Joan Krause, J.D.; Michael Laposata, M.D., Ph.D.; Holning Lau, J.D.; Sue Luttner; Beth Maloney, J.D.; Loren Pankratz, Ph.D.; Maya Manian, J.D.; Rachel Rebouche, J.D.; Diane Redleaf, J.D.; Maria Savasta-Kennedy, J.D.; Richard Saver, J.D.; Jessica Shriver, M.A., M.S.; Adam Stein, J.D.; Eric Stein, J.D.; Beat Steiner, M.D., M.P.H.; Judy Stone, M.D.; Deborah Tuerkheimer, J.D.; Catherine Volponi, J.D; and Deborah Weissman, J.D. -
Introduction Several High‐Profile Criminal Cases, Such As Those Of
Introduction Several high‐profile criminal cases, such as those of Sally Clark, Angela Cannings, Trupti Patel and Donna Anthony – all wrongly convicted of the murder of their children on the basis of flawed expert evidence – have raised serious questions about the use, nature and quality of expert evidence in such cases. As well as the injustice and suffering inflicted on innocent families, the publicity surrounding these cases has seriously undermined public confidence in the criminal justice system. Further, this publicity has deterred suitably qualified clinicians, already in short supply, from acting as expert witnesses. In the wake of these cases, the government commissioned the Chief Medical Officer, Sir Liam Donaldson, to produce proposals for the reform of expert evidence in family law cases more generally. Such reform was long overdue since there were already serious concerns about unacceptable delays in cases where experts were instructed. These delays were attributed partly to a significant increase in the number of experts being instructed, their limited availability for hearings and the late submission of reports to the court. Such issues are addressed in the Report from Sir Liam Donaldson on this issue, which concentrates on public law proceedings in Children Act cases and makes 16 proposals for reform. As the Report makes clear, the issues raised are relevant to medical evidence in both criminal and Children Act cases. Research cited in the report shows that there have been surprisingly few instances in family law cases where the evidence of expert witnesses has been disputed. The Minister for Children had required local authorities to review cases of children who were the subject of care proceedings where certain expert evidence was likely to have had a significant bearing upon the decisions of the courts. -
The Case of Kathleen Folbigg: Medical Expert
THE CASE OF KATHLEEN FOLBIGG: MEDICAL EXPERT TESTIMONY, A SYSTEM FAILURE ‘People are … convicted for the illegal acts that they do’1 MICHAEL NOTT2 © 2014 ABSTRACT This article considers the two discredited hypotheses of Sir Roy Meadow: Munchausen Syndrome by Proxy (‘MSBP’) and the ‘rule of three’ in relation to multiple infant deaths. These hypotheses are controversial. While appellate courts have either rejected them outright or called them speculative, they have been used to achieve convictions in other courts. This article considers how these hypotheses were used in the trial of Kathleen Folbigg, specifically in the prosecution’s questioning and eliciting of witness responses. Although not acknowledged specifically by name, the hypotheses underlined the expert testimony of the prosecution witnesses, thereby creating a presumption of guilt. It is argued that this presumption was compounded by the use of exclusion evidence and the implied use of discredited statistical calculations previously utilised, and rejected, in the trial of Sally Clark. 1 Interview with Richard Refshauge, (then) director of Public Prosecutions ACT, (telephone, 20 July 2004. 2 Michael Nott LLB (Macquarie University) is a former journalist who was employed in the media and communications sector. He has a specific research interest in Meadow’s Munchausen Syndrome by Proxy and/or the ‘rule of three’ murder theories. The author has not spoken to Kathleen Folbigg concerning the preparation of this article. Contact: michaelnottATyahoo.com.au The author wishes to acknowledge the support, suggestions and advice of the following people in preparation of this article: Charles Pragnell, Bob Moles PhD, Clifford G. Miller, Ron Cahill, Robert Gregson PhD, DSc, Gary Edmond PhD, Emma Cunliffe PhD, Paul Goldwater FRACP, FRCPA, Caroline Blackwell PhD, FRCPath DSc and, particularly, Helen Hayward-Brown PhD. -
Miscarriages of Justice Why the Criminal Justice System Fails
Miscarriages of Justice Why the Criminal Justice System Fails Defendants Miscarriages of Justice ● A miscarriage of justice is when innocent people serve prison sentences for crimes they are not guilty of. Despite the Criminal Justice System allowing appeals against conviction and / or sentence, miscarriages of justice still occur today. ● A miscarriage of justice may happen because of the fabrication of evidence, misinterpretation of evidence, a confession given under police pressure, being wrongly identified by a witness, misleading expert testimony, psychological instability and misdirection by a judge during trial. Misleading Expert Testimony Sally Clark, Angela Cannings and Donna Anthony were convicted of killing their babies after the paediatrician Professor Sir Roy Meadow, gave evidence in their trials. He told the jury in the Sally Clark case the chances of two cot deaths in a family like hers were one in 73 million. The Royal Statistical Society disagreed and wrote to the Lord Chancellor saying there was "no statistical basis" for the figure. Experts now believe the risk could be anywhere between one in 100 and one in 8,500! Sally Clark In the Sally Clark case, a solicitor from Harrogate (Marilyn Stowe) who hadn’t any experience in the criminal law believed that there must have been another factor at play in the Sally Clark case, perhaps involving medical evidence that had not been uncovered or used at the trial or appeal. Sally Clark A pathologist's report unearthed by Stowe proved Clark's second son, Harry, had died of a viral infection. With that new evidence, which had not been disclosed at the previous hearings, Clark was granted a second appeal and won - quashing the conviction of two life sentences. -
Trial Outcomes in Child Death Cases: Influenced by Mothering Myths?", University of Southampton, Faculty of Business, Law and Art, School of Law
University of Southampton Research Repository Copyright © and Moral Rights for this thesis and, where applicable, any accompanying data are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis and the accompanying data cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content of the thesis and accompanying research data (where applicable) must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holder/s. When referring to this thesis and any accompanying data, full bibliographic details must be given, e.g. Thesis: NGF Orr (2017) " Trial outcomes in child death cases: influenced by mothering myths?", University of Southampton, Faculty of Business, Law and Art, School of Law. UNIVERSITY OF SOUTHAMPTON Faculty of Business, Law and Art School of Law Trial outcomes in child death cases: influenced by mothering myths? NGF Orr Thesis for the degree of Doctor of Philosophy 6 November 2016 i ii UNIVERSITY OF SOUTHAMPTON ABSTRACT FACULTY OF BUSINESS LAW AND ART School of Law Doctor of Philosophy TRIAL OUTCOMES IN CHILD DEATH CASES: INFLUENCED BY MOTHERING MYTHS? NGF Orr This thesis draws on the insights of rape myth scholarship and also critical responses to battered women who kill to argue that trial outcomes in child death cases may have been influenced by mothering myths. It argues that in order to understand the reasons for wrongful convictions in such cases, we must look beyond the issue of flawed expert evidence, namely to possibly stereotypical interpretations of maternal behaviours around the time the children died. -
Righting Miscarriages of Justice?
RIGHTING MISCARRIAGES OF JUSTICE? Ten years of the Criminal Cases Review Commission Laurie Elks JUSTICE – advancing justice, human rights and the rule of law JUSTICE is an independent law reform and human rights organisation. It works largely through policy- orientated research; interventions in court proceedings; education and training; briefings, lobbying and policy advice. It is the British section of the International Commission of Jurists (ICJ). JUSTICE is a charity (registered charity 1058580). We rely on the help of our members and supporters for the funds to continue our work. For more information visit www.justice.org.uk. JUSTICE, 59 Carter Lane, London EC4V 5AQ Tel: +44 (0)20 7329 5100 Fax: +44 (0)20 7329 5055 E-mail: [email protected] www.justice.org.uk © JUSTICE 2008 ISBN 978 0 907247 45 6 Designed by Adkins Design Printed by Hobbs the Printers Ltd Extract from Criminal Appeal Act 1995 (C35) is reproduced under the terms of Crown Copyright policy guidance issued by HMSO. Article on page 269 © Guardian News & Media Ltd 2004, reproduced with permision. JUSTICE is grateful to the Law Society Charity for its support of this publication. Contents Biography of author 4 Foreword 5 Chapter 1 The Commission’s origins and powers 11 Chapter 2 The meaning of safety 29 Chapter 3 The approach to fresh evidence (1) – Pendleton and after 52 Chapter 4 The approach to fresh evidence (2) – expert evidence 73 Chapter 5 The approach to fresh evidence (3) – further considerations 106 Chapter 6 Modern standards of fairness 133 Chapter 7 Changes