SBS: Battle of the experts

TONY WALL - Sunday Star Times

28/11/2010

Photo: Dominion Post

Dr Patrick Kelly's approach has come in for criticism.

Medical evidence in child-abuse cases in this country has come down to a good old-fashioned stoush between Australia and New Zealand, with a couple of notable victories for the Aussies.  

BECAUSE STARSHIP'S child protection team, led by Patrick Kelly – considered New Zealand's leading child-abuse expert – appears only for the Crown, defence lawyers are forced to go elsewhere. Many turn to Terry Donald, a forensic paediatrician and senior consultant in child protection services at Adelaide's Women's and Children's Hospital, who most often gives evidence for the prosecution in Australia.
But he doesn't come cheap – his fee is around $20,000.
Donald gave evidence in the Kahui murder trial in 2008, challenging Kelly's evidence of the timing of the assaults on the twins. Their father, Chris Kahui, was acquitted. Last year Donald appeared for the defence in the trial of Abhinesh Sharma, charged with murdering his 16-month-old nephew by violently shaking him and slamming his head against a wall.
Kelly concluded it was child abuse and that the injuries could not have been sustained by a fall from a couch, but Donald testified they could have. Sharma was also acquitted.
In a similar case this year, Donald gave evidence in the trial of Famaile Lino, testifying that his baby daughter's injuries could have been sustained in a fall from a chair. The judge criticised Starship doctors who concluded abuse, saying they had not considered all the evidence.
Kelly declined interview requests, saying it would be inappropriate to debate information relating to a specific child, including evidence he had given in court, through the media. In a statement he said the health board had a complaints process and he welcomed feedback from it. "Formal complaints are treated with respect, and lessons learned are used to guide clinical practice."
Donald says it is worrying that there are not enough specialists in New Zealand prepared to help defence teams, partly out of deference to Starship. "It's an important issue that no one in New Zealand will give the defence any time. Defence lawyers risk going to people who are seen as extreme, who aren't even sometimes people who've ever assessed children clinically. I've tried to give them a balanced perspective."
He believes New Zealanders should be concerned that defence lawyers are having to look overseas for experts, not just for cost reasons.
"There's a lot of rivalry between Australia and New Zealand, and New Zealand would generally be regarded as an impressive country but what's it doing with child protection? It's having to defer questions to Australia."
He says there's a danger in rushing to judgement in child head injury cases. "The issue of inflicted head injury is a major problem. It's not a matter of identifying retinal haemorrhages in association with subdural haematoma (as in the Lino case) and then deciding the child has been shaken. It's much more complicated."
England's Appeal Court recently issued guidelines on how judges and juries should deal with expert evidence in shaken-baby cases. If there's a realistic prospect of an unknown cause for the injuries, judges must remind juries of that.

Some defence lawyers criticise Kelly for allegedly being unwilling to consider alternative explanations for injuries.

Kahui defence team member Michele Wilkinson-Smith says Kelly is a "wonderful" doctor who cares for the children he treats, but she wonders if that may sometimes prevent him being objective.
"In court you've got to be utterly objective and forget about your advocacy role for the child. That's where I have a problem with some of the evidence he's given."
She said in her view it appears that he "has definitely reassessed the way he gives evidence since Kahui. I've had more cases with him and his reports are less dogmatic."
Wilkinson-Smith says that because Australia has a much bigger peer group of forensic paediatricians, doctors are challenged more often, and are used to having to ensure their opinions stand up to challenge.
"Here, until Kahui, no one was challenging Dr Kelly."
Sharma's lawyer, Maria Pecotic, believes treating clinicians should not give expert evidence. "I don't think they are open-minded enough."
Auckland Crown Solicitor Simon Moore says a meeting was held with Kelly and his team after the Lino judgement. Recommendations included ensuring expert witnesses are provided with all the relevant evidence to help formulate their opinions, and considering engaging overseas experts to review the opinions of local experts.
"In a case like Lino, there are always going to be ramifications that arise out of that sort of judicial criticism," Moore says. "It means those agencies responsible for the prosecution need to take stock and review their processes."
He says it's important to note that most suspected abuse cases are referred to the child protection unit by other medical professionals. "This is not a stand-alone unit that's some kind of roving forensic paediatric police force."
Moore says it is notoriously difficult to prosecute child-abuse cases. "If you have an expert who comes along and is prepared to say: `I think it's possible the explanation could be something else', even if he doesn't favour it, then we haven't proven our case. That's why internationally only 20% of these cases succeed."
He says Kelly attends all the same conferences as Donald and other experts.
"He is internationally regarded as one of the most talented and able paediatricians in the world. We should be extremely proud of what that man has achieved."
http://www.stuff.co.nz/sunday-star-times/features/4395246/Battle-of-the-experts

SBS: New Zealand doctors accused by judge

Judge slams Starship Hospital doctors

TONY WALL - Sunday Star Times

31/10/2010

Photo: Grahame Cox

Starship Children's Hospital management will meet with the Crown Solicitor.

A district court judge has criticised doctors at Starship Children's Hospital who concluded that a father had assaulted his baby daughter, saying they failed to consider all the evidence and had closed minds on whether her head injuries were accidental.
The case has raised concerns about the way medical staff differentiate between accidental and non-accidental head injuries in children and has sparked a high-level meeting between Starship management and the Crown Solicitor to further discuss the "potentially far-reaching" implications of the verdict.
Famaile Lino, a machine operator from Onehunga, was charged with causing grievous bodily harm with reckless disregard for his six-month-old daughter, Mere. He told police her injuries were the result of her falling from a La-Z-Boy chair.
After a judge-alone trial in the Auckland District Court, Judge David McNaughton found Lino not guilty and said it was "regrettable" the doctors at Starship did not review all of the evidence before reaching their conclusions. They had failed to take into account Lino's interviews with police and witness statements before forming their views, he said in a written decision.
Judge McNaughton said the doctors would not have altered their views no matter what explanation Lino gave, "and to that extent the decision to prosecute... was a foregone conclusion".
The judge said he was satisfied there was at least a reasonable possibility that Mere suffered her injuries as a result of a fall. After the incident Child, Youth and Family took Mere and the couple's other two children into care. The two oldest children have been returned to their parents and the couple is now trying to overturn a court order granting interim custody of Mere to a relative. She has ongoing physical and possibly intellectual disabilities.
Lino's lawyer, Charles Cato, said it was one of the most concerning cases he had been involved with in 30-plus years of law, because of the deficiencies in the evidence of the Starship experts, who had rushed to judgement.
"When expert evidence gets to that state, it becomes dangerous in the criminal courts," Cato said. He was concerned there might be other similar cases and said it was imperative that police consulted experts independent of Starship.
The only thing that prevented what could have been a "gross miscarriage of justice", Cato said, was a legal aid grant which allowed him to call an internationally respected paediatrician to give evidence.
Mere was admitted to Starship on May 11, 2009. According to her father, he had placed her on the chair and then fell asleep – he was working nightshifts and caring for his two younger children during the day – and was woken by the sound of Mere thumping on to the floor. Her breathing became laboured and he threw her into the air, slapped her face and performed CPR in an effort to revive her. An ambulance was called straight away, which the judge noted was not typical in cases of child abuse.
But two Starship doctors who examined Mere concluded that her injuries, including a subdural haemorrhage, could not have occurred by falling such a short distance, and that the injuries were usually seen in high impact car crashes or falls from buildings.
One doctor said that haemorrhaging seen in Mere's eyes was, according to international studies, "highly specific of non-accidental injury" and in the absence of some other major trauma, "considered as diagnostic of child abuse".
But Judge McNaughton said he preferred the evidence of Terrence Donald, senior consultant in child protection services at the Women and Children's Hospital in Adelaide. Donald was also called by the defence in the Kahui twins murder case – challenging the evidence of Starship paediatrician Patrick Kelly on the timing of those assaults.
Donald told the court in the Lino case there was a lot of debate about how such retinal haemorrhaging was caused. Until 2000 it was considered characteristic of shaken baby syndrome, but more recent opinion had moved away from that.
Judge McNaughton wrote: "Like Dr Donald, I have a nagging doubt that the scientific position could be quite different in another 10 or 20 years' time."
Donald told the court he would never write a report until he had read all of the interviews conducted by police, and he was surprised the Starship doctors had not reviewed the police interviews and did not know that the Linos' older son had also provided witness evidence.
He was also concerned a bone scan on Mere was only carried out a week after admission to hospital, and there was no observation of the progress of the one possible impact mark on her forehead.
Kay Hyman, the Auckland District Health Board's general manager of clinical services for women's and children's health, said hospital management would meet with the Crown Solicitor for Auckland to discuss the case.
"We want to understand the implications of the decision, which are potentially far-reaching." She would not elaborate on the implications.
Hyman said the hospital had a robust clinical process for handling potential child abuse cases and she stood by the assessment of its doctors. "Our view was not formed without a comprehensive process of independent expert advice and review," she said.
She said the primary interest of Starship staff was protecting vulnerable children and staff did not question whether abuse had occurred without good reason.
The decision on whether to bring charges was up to police, not doctors.
Cato described the Linos as hard-working "battlers" who had not only suffered the trauma of having their baby seriously injured, but faced Famaile Lino doing a lengthy jail stint.
"It's a very important case. It shows how suddenly a person can be at home with their feet up looking after their children, and a nightmare commences."
http://www.stuff.co.nz/national/4291035/Judge-slams-Starship-Hospital-doctors