Medical expert evidence: the continuing failure of the legal system

Most recently, Dr Hayward-Brown has noted that social services are aware that the diagnosis of MSBP has been discredited, so parents actually receive an “invisible label”. Parents are continuing to be accused of MSBP, with its concomitant profiling, but the label is not used in court documents.

A significant court success was a case of a mother originally accused of MSBP some 15 years ago by Meadow when he was provided with medical files and other material by a child protection agency. This mother’s children were placed in care, except for the eldest child. Around 2004, when the mother was expecting another child, she went interstate to give birth as she was afraid that the newborn child would be taken from her at birth. (Removals at birth have increased dramatically over the last few years.) After the birth, social services became aware of her situation and she fled. Five years later her child was found and taken into care. The subsequent court ruling resulted in the mother resuming full time care of the child. She is unable to regain custody of other children taken from her based on the now discredited MSBP theory.

There is a certain irony in this case. If a mother is accused of MSBP, she is supposed to be harming her child to get attention from the medical profession. In this case, when the mother fled she was apparently not in a position to get attention from medical professionals.

Agencies continue to pursue the mother in R v JKF who was also directly accused by Sir Roy Meadow. Once the case failed in the Supreme Court, the police and the NSW Crown Solicitor’s Office took the matter of the deaths of the mother’s two other children to the Coroner’s Court in late 2009. At the time of the two deaths in 1998, police provided the coroner with death certificates for the two children noting that medical conditions were the cause of the deaths. The deputy coroner justified the delay in the hearing on the basis of other court hearings involving the mother. The mother was not entitled to legal counsel, as the Coroner’s Court is a court of inquiry. For these reasons, there was no cross-examination of witnesses who had previously given evidence for the prosecution.

The deputy coroner raised the issue of munchausen syndrome by proxy but declined to make a finding on the matter. He found that one child died of natural causes while the other child died as a result of “probable” introduction of foreign substances. The deputy coroner did not say that the mother had introduced the foreign substance.

He stated that as result of the decision in R v JKF, he was not satisfied that a jury could be satisfied beyond reasonable doubt. Despite lack of definitive evidence and the failure of criminal charges, the child protection agency refuses to reinstate the mother’s custody rights to her only living child.

A succession of UK, Queensland and USA superior courts have found that Meadow’s cot deaths and MSBP beliefs have no legal foundation - R v LM ruled the MSBP label inadmissible evidence. The British General Medical Council and the Royal Statistical Society have criticised Meadow’s use of statistics and his lack of concern about the matter. I question why Meadow’s discredited beliefs are still being used in Australia, in both civil and criminal jurisdictions, as they are based on speculation, beliefs and surmise - no substantive evidence of illegal acts or probative evidence of children being at risk of harm.