When expert witnesses play judge and jury

Yesterday we came across a fascinating article by Sarah Phillimore on the Transparency Project Blog, discussing the problems which can ensue in Family Court when expert medical evidence is not based on reliable clinical practice.

For those of us who’ve grown used to the shrieks and howls of the Hoaxtead mob regarding Dr Deborah Hodes’ examinations of RD’s children during the police investigation in September 2014, it’s a familiar issue.

While the case Sarah describes is quite different from the Hampstead SRA hoax, the point in common is a physician who is seemingly so enamoured of her own ability to discern child abuse (emotional in one case, sexual in the other) that she delivers what seems more like a judgment than an expert opinion. Fortunately, in both cases the judges were experienced enough to discern the problem, but things could quite easily have swung in the other direction, ultimately causing irreparable harm.

In the more recent case, a local authority believed that a one-year-old boy should be placed for adoption. The expert witnesses, Dr Rees a psychologist and Ms Hall a social worker, provided their evidence, had produced a joint report and gave their evidence in tandem:

Dr Rees had carried out a CARE Index assessment (CIA) described as a clinical tool deployed by specially trained psychologists to assess the emotional relationship between a baby and parent. The CIA enables the psychologist to assess a very short period of care and by using codes identify the interactions by both parent and child and then to analyse them.  Having repeated the CIA over time, Dr Rees concluded the child was at high risk of emotional harm in his interactions with his mother.

She was challenged about why the other professionals had all commented on the warmth of the relationship between mother and son. The Judge was satisfied by Dr Rees’ ‘very robust’ response that she had been specifically trained to deploy the CIA as a clinical tool and she was best able to give the court expert evidence on the interactions and their significance. The other professionals were mistaken in their more positive ‘general observations’ and had missed what she had seen because ‘she had used the tool that was needed to see it’.

We were instantly reminded of Mrs Justice Pauffley’s observation in her 19 March 2015 judgment:

132. Overall, I feel impelled to observe that the level of Dr Hodes’ involvement in this case was unusual. I remind myself of the several cautionary considerations when a court is considering the contributions made by experts as comprised within Re U; Re B [2004] EWCA Civ 567 – i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal. … iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

Why did Dr Hodes perform two anal exams?

The first examinations Dr Hodes performed conformed to the recommendations of the Royal College of Paediatrics and Child Health Review of 2008—they were done in the left lateral position. During examination, Dr Hodes found the following:

• Child P: Three linear scars extended almost to the anal verge, and after 10 seconds of gentle traction there was anal laxity. There was no reflex anal dilatation.
• Child Q: One anal fissure scar was identified, and there was no reflex anal dilatation.

The second examinations occurred on 16 September, and were done in the knee-chest position. This time, the results were different:

• Child P: Persistent reflex anal dilatation was found during buttock separation;
• Child Q: No reflex anal dilatation was found, but the anal fissure scar was confirmed.

In her report on Q, Dr Hodes stated that this scar was “consistent with inflicted injury from a blunt penetrating force that he has alleged”.

In her evidence during the fact-finding hearing, Dr Hodes described more of her rationale for asking to re-examine the children’s genital areas.

She said, “I’ve got this allegation which has been made to several people…” Dr Hodes had thought about it over the weekend and, “on reflection believed (she) should have examined the children in the ‘knee chest’ position”. She added, “it’s not what you do it’s how you do it”.

In her 22 September report, Dr Hodes ventured an opinion on the frequency and validity of recantation amongst child sexual abuse victims—not part of her remit, which was physical examination of the two children, but an issue about which she apparently believed she was professionally qualified to comment.

Subsequently, Dr Hodes took this case to a peer review meeting.

As explained in her Amended Medical Report of 4 December 2014, her anogenital findings in relation to both children were then significantly amended. The previously confirmed fissures were said to be irregularities in the ruggae (folds, wrinkles or ridges) and their clinical significance was described as “possible normal variant”.

The only persisting physical sign post peer review was reflex anal dilatation in P which, so Dr Hodes maintains, is “consistent with her allegation of the blunt penetrating force to her anus i.e. sexual abuse.”

In evidence she said her colleagues had it was “abnormal and striking”; she stated that RAD is a sign which is “rarely seen”. (This is disputed in the medical literature, where estimates of the occurrence of RAD in non-abused children range from 11% to 49%.)

In her written report she also said, “There is evidence in the literature that the absence of physical signs neither supports not (sic) refutes an allegation of anal penetration. In this case it was alleged that lubrication was used which adds to the probability of abuse”.

Thus, although her interpretation of her medical findings had been trashed by her colleagues in peer review, and despite the fact that both children had originally made allegations of anal rape, but only one showed the sign Dr Hodes was looking for, she was not willing to let go of her belief that the children’s allegations were based in fact.

Did Ella contaminate Dr Hodes’ opinion?

The Pauffley judgment states, “On 26 September, Dr Hodes and a Senior House Officer met with Ms Draper “for further information regarding the children’s medical history.” A little over two pages of the four page report are devoted to the “allegations allegedly made by P and Q to their mother.”

In other words, rather than focussing on the physical findings, which were equivocal at best, Dr Hodes chose to focus on the information given to her by Ella.

In October/November 2015, we noted an online conversation on Abe and Ella’s now-defunct blog, which delves further into this issue:

As “Fact and fiction” points out, Dr Hodes’ conversation with Ella should have been limited to the children’s medical history—and a history should have been taken from RD, and most important, the children’s GP. We don’t know that this did not happen, but if it did, it was not included in Dr Hodes’ reports.

Dr Hodes and reflex anal dilatation

The Hampstead hoax is far from the first instance in which Dr Hodes’ reliance upon RAD as a diagnostic tool has been questioned by the courts.

Referring to a case which was tried in 2010, Margaret Jervis pointed out that

It would appear from the judgment that there was insufficient confidence in the child’s evidence, whatever stage it was at, until April 4th when she was examined by a paediatrician, Dr Deborah Hodes. Dr Hodes examined her bottom and found no indications of past injury.

She did make a finding of ‘anal dilatation’- the opening of the anal canal on parting the buttocks that became the centre of controversy in Cleveland in 1987.

Dr Hodes gave evidence that that such evidence ‘could be supportive’ of an allegation of anal penetration but that it occurred in 11 per cent of non-abused children. This is misleading. Studies do in fact show that the ‘sign’ can appear in up to 49 per cent of non-abused children, that it may be caused by the pressure placed on the buttocks and that it has no diagnostic value in detecting sexual abuse.

During her examination, Dr Hodes also asked the child whether anyone had hurt her bottom and she replied that [the accused person] did.

So what Dr Hodes had was, in effect, not a finding supporting an allegation, but an allegation supporting in inconsequential finding in response to a leading question.

Accepting responsibility for error

In the Hampstead case, Dr Hodes seemed unwilling to give up her opinion that RD’s children had been abused, even though she’d only found RAD in one of the children. Her insistence on playing both “expert witness” and judge—assigning meaning to her findings based on evidence provided by Ella—has enabled her findings to be used as a talking point for those who’d like to believe that Hampstead is populated by members of a “Satanic death cult”.

By contrast, Dr Rees was willing to accept that the evidence she gave in the case described by Sarah was far from exemplary. Indeed, she gave a “laudably frank” response to the judge’s critique, and acknowledged her own responsibility for the problem her evidence had created.

Ultimately, in our view this is the much more professional response: people make mistakes, even when it comes to important things such as giving evidence in a hearing which will determine the future of a child. Taking responsibility for such errors is critically important, and paves the way toward a more robust and trustworthy verdict.