Declaration In accordance with Regulation 25 of the Assessment Regulations for Research Degrees at the University of Edinburgh, I certify that this thesis I have presented for examination for the PhD degree of the University of Edinburgh is entirely my own work, except where explicitly indicated otherwise throughout the thesis by reference or acknowledgment. This work has not been submitted for any other degree or professional qualification. John Beattie Date i Abstract The aim of this thesis is to investigate and further understanding of the interaction between paediatricians providing expert opinion evidence in cases of alleged child abuse and the various fact-findings tribunals who require their expertise. My original contribution to this largely unexplored area of scholarship lies in the identification and analysis of potential frailties particular to the setting and process of paediatric expert assessment of cases of alleged child abuse that need to be recognised and accounted for in order to ensure that, as far as possible, expert paediatricians provide reliable opinion evidence. Specifically, informed by extensive practical experience, I deconstruct and examine the various elements that together constitute the sequential process of expert diagnostic decision- making and opinion generation. First, drawing on empirical research and theoretical constructs from a range of knowledge domains, particularly behavioural psychology and cognitive neuroscience, I consider emerging research on human factors that may influence clinical decision-making and forensic judgments, and apply this evolving understanding to the process of paediatric forensic interpretation. Here I expose a variety of potential biasing factors specific to the child protection setting that may impact on expert paediatricians’ rational judgments that an injury may abusive in origin. I then move on to provide a detailed critique of the evidence base on which such paediatric expert clinical judgments and opinions must be based. Acknowledging the absence of a gold standard test for abuse, I question some fundamental aspects of the proxy indicators of abuse currently promoted as the basis for expert opinions, before discussing the challenges for legal fact-finders tasked with interpretation of those opinions by the absence of an agreed semantic hierarchy with which the certainty of expert conclusions might be qualified. ii Finally, having shown that in the context of child abuse assessment there are indeed a variety of potential threats to paediatricians’ objective forensic judgments, I use alleged “shaken baby” cases as an exemplar topic to expose those frailties within such cases, and explore the challenges posed for the courts in dealing with complex and evolving paediatric expert evidence. I conclude that neither the law nor legal institutions can resolve these threats to objective expert forensic decision-making alone, and that such frailties need to be recognised and accounted for by both individual paediatric experts and the wider child protection community. iii Lay Summary This thesis seeks to improve understanding of a particularly challenging area of forensic practice – expert paediatric evidence in cases of alleged murder or abuse of infants and young children. Such cases are complex for a number of reasons, but perhaps most notably because those who come under suspicion are usually a child’s parent or caregiver. For the families involved, even if such allegations do not lead to criminal proceedings, the effects of such investigations are likely to be life-changing. The courts depend almost exclusively on the expertise of paediatricians and other doctors to provide opinion evidence to help them decide whether any injuries found are natural or likely to have been inflicted. If experts get it wrong it may mean, on the one hand, an innocent parent going to jail, on the other, a vulnerable child returned to be further injured or killed. The stakes are high for all concerned. From the perspective of an experienced paediatric expert witness, I examine various core components of the process of forensic evaluation of young children with suspicious injuries. I consider whether there are frailties inherent to such evaluations that might undermine the objective judgments of expert paediatricians and thus affect the reliability of the opinions they provide to the courts. I discuss a variety of potential problems that expert paediatricians should be aware of and take in to account in formulating their expert opinions. These include the risk from various unconscious biases and the emotive nature of such cases, weaknesses in the scientific evidence base on which such judgments must be based, and the lack of an agreed common language by which experts can explain the certainty, or otherwise, of their conclusions. I also discuss the particular challenges faced by the courts in ensuring that, in complex cases such as alleged “shaken babies”, their decisions are firmly based on reliable expert opinion evidence. iv Acknowledgements Pursuing a PhD thesis in the afterglow of retirement from a professional career is a little unusual, and setting aside the personal demands, such an endeavour presents particular challenges for those tasked with guiding and monitoring an individual much more attuned to being a supervisor than a supervisee. All those involved with this work could not have been more helpful or supportive. I would like to thank Professor Sheila McLean, Professor Emerita of Law and Ethics in Medicine, University of Glasgow, for her encouragement and advice when I first raised the possibility of pursuing this project. She warned me that a PhD “was a huge step up from a Masters” – and she was right! Professor James Chalmers, then Senior Lecturer in Law at the University of Edinburgh, was very encouraging in response to my initial enquiry and subsequent PhD application. I thank him for that, and for his excellent supervision during my first year at Edinburgh Law School, before he moved to the Regius Professorship at Glasgow University. For the last six years I have been supported and guided in this project by Professor Burkhard Schafer and Professor Graeme Laurie. I have benefitted greatly from their combined wisdom, breadth of knowledge and guidance, in particular the skill they quietly applied in steering me in the right direction when my focus drifted towards “interesting” side issues. Their differing backgrounds and approaches combined extremely well to provide the blend of supervision I needed, and I cannot thank them enough for their help in bringing this project to a conclusion. Any insightful analysis is likely to be down to them; any errors are mine. Many individuals have also provided me with practical advice or other support at various times. However, I would particularly like in to thank the following: Dr Geoff Debelle, Officer for Child Protection, RCPCH, for information on trends in NAHI convictions in England, and in relation the experience, or otherwise, of child protection paediatricians with pre-trial expert meetings in the English criminal prosecution system. Professor Gary Edmond, School of Law, The University of New South Wales, Sydney, for providing pre-prints of his papers on expert evidence. Mr Mike Hally, producer, SquareDog Radio, for supplying me with a digital copy of the Radio 4 broadcast “Peer Review in the Dock”, presented by Mark Whitaker in 2008. v Mr Jason Harper, Content Strategy Manager, Charles Seale-Hayne Library, University of Plymouth, for his time and expertise in resolving coding errors in my Refworks reference manager software application. Dr Patrick Kelly, Director, Te Puaruruhau (Child Protection, Shaken Baby Prevention and Family Violence Intervention), Starship Children's Hospital, Auckland, for providing information on secular trends in infant abusive head injury prosecutions in New Zealand. Ms Gill Moreton, Cognitive Behavioural Therapist, Rivers Centre for Traumatic Stress, NHS Lothian, for advice on the Post Traumatic Stress Disorder literature in relation to child protection workers. Dr Catherine Skellern, Consultant Paediatrician, Child Protection and Forensic Medicine, Lady Cilento Childrens Hospital, Brisbane, Australia, for providing pre-publication copy of her paper on minimising bias in the forensic evaluation of suspicious paediatric injury. Dr Amanda Stephens, Emergency Department, Westmead Hospital, New South Wales, Australia for providing me with personal electronic copies of selected chapters from her 2011 PhD thesis deposited at the University of Sydney: “Legal Outcomes in Non-accidental Head Injury ('Shaken Baby Syndrome') Cases: Inevitable Inconsistencies?” I acknowledge the generous permission of Lord Woolman and the anonymous agreement of a Scottish Appeal Court judge in allowing me access to Lord Woolman’s confidential report in relation to Ms Kimberley Hainey’s appeal against her murder conviction (Chapter 2). Finally, I wish to thank Ago (Dr Agomoni Ganguli-Mitra, Co-Director, Mason Institute), and the disparate attendees at the Mason Institute writing retreats for their fellowship, knowledge, gossip and humour during our boot camp sessions. I will almost miss those long days. vi Dedication As anyone who has embarked on a PhD knows, pursuing such a goal demands many things, including a measure of self-centred focus and a dogged determination to see such a marathon through to the end. However, one of the most important requirements is a loyal friend to accompany you on the journey, to sympathise