1. ‘You're out
of order! You're out of order! The whole trial is out of order! They're out of
2. It is not
necessary to accept everything as true, one must only accept it as necessary.
Smith’s form of cross-examination could have been named ‘the foreign country’
cross-examination. Everyone knows that if you can’t make yourself understood in a
foreign country, you shout.3
In 2007, the
General Medical Council (GMC) held a Fitness to Practice Hearing (FTP) to hear
the cases of Professor Simon Murch, Dr Andrew Wakefield and Professor
Walker-Smith, who had, the prosecution claimed, carried out experimental
research on autistic children. Assembled in rented premises half way up a glass
building on the Euston Road, the main artery west out of London, despite the
hearing having been scheduled for three months, the hearing was to last on and
off over the next three years.
began preparing charges in the case in 2004, after Brian Deer, a Sunday Times
consumer affairs reporter, who after being a staffer on the Sunday Times had
become a free lance reporter, sent the GMC a long document apparently
prepared by him,4 which followed, in more formal language, a tabloid style
exposé he had written in Murdoch’s Sunday Times.5
action in presenting the massive complaint to the GMC, was supported by the then
Minister of Health, whom Deer quoted in his article, and Tony Blair the then
Prime Minister, who remarked in a television interview that followed the article
‘we now know the truth’.
probable that the document sent by Deer to the GMC, ‘the complaint’,
was prepared with the help of Medico-Legal Investigations, a private enquiry
agency solely owned by the Association of British Pharmaceutical Industry
(ABPI),6 which for some years had been shepherding those disciplinary cases that
affected the pharmaceutical industry,through the GMC. This case affected the
pharmaceutical industry in as much as Dr Wakefield had reported worries about
adverse reactions to the MMR vaccination.
main headings and sub headings, around eighty in Wakefield’s case, covered a
number of areas, such as the use of dangerous diagnostic procedures, ethics committee
approval or lack of it, and a whole slew of charges unlikely to appear out of
the ordinary to the Panel7 (the jury) of the hearing, and which created a miasma
of sleaze around Wakefield. The charges were in the main a repetition of Deer’s
unproven and unevidenced allegations. Although the authors had tried to fit
evidential facts into categories of issues, a proven narrative which gave
circumstances, logic and objectives for the defendants did not exist — except in
that Dr Andrew Wakefield, the man who had questioned the safety of the MMR
vaccine, was portrayed as a thoroughly wicked and unethical person.
Two of the
most apparently authoritative issues in Deer’s article were ‘conflict
of interest’ and ‘legal aid funding’ for research; that is, Dr Wakefield’s
undeclared conflict of interest in the 1998 Lancet case review paper, published
after he had signed up as an expert witness in a claim by parents of vaccine
damaged children against three pharmaceutical companies,8 and Legal Aid Board
funding given to expert witnesses in Britain to pay for researching issues at
the centre of criminal or civil actions.9 In order that the panel heard nothing
about the real condition of the children adversely affected by MMR, only one
parent claimant from the then failed civil action against the three
pharmaceutical manufacturers of MMR, appeared at the FTP hearing.10
prosecution steered clear of adverse reaction to vaccines, by casting doubt
over whether the children, cited in the 1998 case review paper, autistic or not,
were actually ill. At the finish Professor Murch was found guilty of a number of
charges which didn’t include dishonesty and was weakly admonished, Professor
Walker-Smith by then retired was found guilty of the majority of the changes but
not of dishonesty, while Dr Andrew Wakefield, portrayed by Brian Deer, the GMC
and the pharmaceutical lobby groups as the devil incarnate, was found guilty on
all charges and erased from the medical register. In February2012 Professor
Walker-Smith was completely acquitted after a High Court Appeal11 while
Dr Wakefield was disallowed funding for an appeal on the grounds that he had
insufficient chance of winning.
the end of the hearing Brian Deer moved relentlessly on with his accusations
that he had been pushed to the centre of the case from the very beginning. In
anumber of articles in the normally peer-reviewed British Medical Journal,12
that has close financial ties with Merck and GlaxoSmithKline, the two MMR
manufacturers, Deer claimed that Wakefield had manipulated diagnostic test
results to support the parents’ case that their children had developed
Inflammatory Bowel Disease (IBD) following their MMRvaccinations.13
three years of the hearing, of which I attended every day bar one,14 I
often asked myself whether or not Miss Smith, the senior prosecutor for the GMC,
briefed by Field Fisher Waterhouse, a major firm of corporate lawyers, knew of
the calumny that she breathed in at the GMC hearing room. This essay asks
questions of Miss Smith, the Legal Advisor to the hearing and the GMC itself,
which go to the heart of the GMC hearing, its sincerity and authenticity,
questions the answers to which could well have reversed the outcome of
the hearing in relation especially to Dr Wakefield.
this essay is about the uses and abuses of information in the GMC Murch,
Walker-Smith and Wakefield Fitness to Practice Hearing by necessity, it is also
about one lay campaigner’s search for information which could, in the face of
the most serious obstruction, gain recognition and compensation for her
vaccine damaged daughter.
for this short piece
character, the lawyer Arthur Kirkland, in ‘And Justice for All’, the title of
the 1979 Norman Jewison film and also the last four words of the American pledge
of allegiance: ‘I pledge allegiance to the flag of the United States of America,
and to the republic for which it stands, one nation under God, indivisible,
with liberty and justice for all.’
Kafka, The Trial.
Walker. Notes from the hearing 2008.
4. It seems
highly unlikely that this document was actually prepared by Brian Deer. Whether
it was or not, the GMC was constant in its deception that Deer had not launched
or ‘put together’ the prosecution. They really had to say this because they
couldn’t afford to call him as a witness. Allegations of Misconduct Submitted to
the General Medical Council re: Unethical Research on Autistic Children
Conducted by Andrew J. Wakefield, John Walker-Smith, and Simon Murch. 2004-02
needs its MI5’ Duncan Campbell. BMJ VOLUME 315:20-27 DECEMBER
Complainant— Brian Deer, the ABPI, Medico-Legal Investigations, and Dr. Andrew
Wakefield Martin J. Walker, MA, M.J. Walker/Medical Veritas 6 (2009) 2077–2092.
Fitness to Practice Hearing has a jury called ‘the panel’, made up of lay
people and professionals, all of whom are paid by the GMC, the foreperson of
this panel is called the Chairman and is again a professional juror chosen by
the GMC. In this case the Chairman Kumar held shares in GlaxoSmithKline, one of
the MMR vaccine manufacturers.
8. See my
essay A lot of Law but little Justice, February 2012.
9. To take
the simplest of examples, the lawyer of a defendant charged with manslaughter
after a motor vehicle offence, might employ (as might the prosecution) an expert
in the mechanics of motor vehicles to ascertain from researching evidence, such
as skid marks, exactly who was responsible for the crash that caused the death.
Suchan expert would in the past (not so much today) have been paid for by the
Legal Aid Board.
parent, unfamiliar with legal cases, was convinced that she was attending the
FTP hearing as a witness for the defendants.
11. See this
authors previous essay Lots of law but little Justice published on the internet
with a link to a PDF
12. Deer B.
How the vaccine crisis was meant to make money. BMJ 2011; 342 doi:
10.1136/bmj.c5258.http://www.bmj.com/content/342/bmj.c5258.full Deer B.
Wakefield's "Autistic Enterocolitis" under the microscope. Brit Med
J, 2010;340:c1127.http://www.bmj.com/content/340/bmj.c1127.fullDeer B. How the
case against the MMR vaccine was fixed. BMJ. 2011;342:c5347. http://www.bmj.com/rapidresponse/2011/11/09/re-how-case-
against-mmr-vaccine-was-fixedDeer B. More secrets to the MMR scare. Feature:
Pathology reports solve “new bowel disease” riddle. BMJ2011;343:d6823.
http://www.bmj.com/content/343/bmj.d6823These articles were not peer reviewed
see Jake Crosby’s Brian Deer’s BMJ Series Not Peer Reviewed Posted byAge of
Autism at March 26, 2012 at 5:45 AM in Jake Crosby | Permalink | Comments (30)
13. In the
absence of an appeal at which Wakefield could argue his case, and with the help
of interested lawyers, he is presently taking an action for defamation against
Brian Deer and Godlee, the editor of the BMJ.
14. As I
have explained in other places, I began attending originally because I intended
to write a book about the‘Wakefield Affair’, but ended up writing reports for
the parents of vaccine damaged children who found it difficult to get to the
Acting on Information Received