Children law: Head injury pilot – the unanswered questions

On 25 July, the Division for Training hosted an ‘info’ session in regards to the Suspected Inflicted Head Harm Pilot Scheme (SIHIS). Mr Justice David Williams, marketing consultant neuroradiologist Professor Stavros Stivaros, marketing consultant paediatrician Dr Fiona Straw, and a consultant of the division all gave displays in regards to the pilot from their views. 

Greater than 300 folks attended the session, together with judges, barristers of varied seniority and a few very distinguished medical consultants. Time was restricted and few of the submitted questions had been answered. Extra worryingly, the assorted displays raised a number of new and essential questions, all of which stay unanswered.

One of many messages all of the audio system appeared anxious to offer was this: the pilot is a medical scheme, designed to have an effect on medical apply and outcomes in these instances, utilizing a multidisciplinary mannequin. It isn’t, primarily, a authorized initiative.

Nobody might object to a scheme, the aim of which is to advertise higher medical analysis and remedy for kids with head accidents, whether or not they’re suspicious or not. Nobody might object to a scheme, the aim of which is to advertise higher requirements of medical reporting. Nobody might object to a scheme, the aim of which is to advertise a wider pool of consultants prepared to help the courts in these troublesome and anxious instances. There might be no argument about any of that.

However the questions which stay fully unanswered are these: what’s the proposed interaction between the SIHIS report (which is able to, apparently, be a professional forma report) and the forensic course of? What’s the proposed relationship between the medical treating opinions and the court-appointed, goal, impartial professional opinions?

We’re advised that the Half 25 statutory scheme for the appointment of impartial consultants will probably be unaffected by the SIHIS pilot, but that a part of the aim of the pilot is to scale back the variety of Half 25 consultants. How does the proposition that the Half 25 scheme will probably be unaffected by the pilot sit with the proposition that one objective of it’s to scale back the variety of Half 25 functions? How will uniform, peer-reviewed, ‘professional forma’ medical reviews of themselves scale back the ‘necessity’ (throughout the which means of the statute) of impartial medical opinion? We have already got medical opinions in each case, on most facets of the drugs (there’ll invariably be a paediatrician, an ophthalmologist and a radiologist), and but a mechanism for the instruction of impartial court-appointed consultants is utilised in each case (to some or different extent) as a result of all that exists at that stage is medical, versus forensic, opinion. The explanation we have now that mechanism in any respect is easy: as a matter of primary pure justice and equity, the events and the courtroom should have, the place it’s obligatory, a second, forensic (versus medical) opinion with impartial, court-led parameters, into which the events have an enter, which is clear, and which might be scrutinised and held to account as a part of the forensic train. If that’s proper, then how might the manufacturing of a professional forma SIHIS report ever displace that elementary requirement and scale back the variety of Half 25 consultants? How might anybody with any grasp of the fundamental necessities of pure justice imagine that the SIHIS report might ever displace the requirement of a second forensic opinion?

Talking plainly, there should be some concern, unallayed throughout the info assembly, {that a} second forensic medical opinion, via a joint instruction, will not be considered a primary requirement of pure justice and equity in any respect. Whereas what actually issues is what occurs on the bottom, there should be a really actual threat that some judges will merely say, when confronted with a SIHIS professional forma, that the courtroom has all of the professional proof it requires to find out the case justly and pretty, and that no additional impartial instruction is critical throughout the which means of Half 25. Whether or not the SIHIS pilot is a Computer virus, designed to displace the instruction of impartial consultants in these instances, is a query which stays unanswered following the knowledge assembly. Some may say that query loomed even bigger regardless of it.

We’re advised that, as soon as the decide has the SIHIS professional forma (and the very notion in itself of a professional forma report in instances like these rings very loud alarm bells) they’ll establish the ‘areas of uncertainty’ after which determine whether or not an impartial professional must be instructed. However with nice respect, how is a decide certified to establish areas of uncertainty in such a posh space, with out the help of impartial medical experience? How is the advocate certified to establish these areas of uncertainty? The entire level of collectively instructed medical consultants is to establish whether or not there are uncertainties within the medical image, to offer a second opinion for forensic (versus remedy or diagnostic) functions, and taking into consideration an evaluation of all of the proof. The place an advocate seeks a second, forensic opinion, how are they supposed successfully and pretty to argue for it within the face of the SIHIS professional forma? What obligation (if any) will the SIHIS clinicians need to reveal areas of weak point or uncertainty of their opinions? Whereas the court-appointed professional bears quite a lot of duties in the direction of the courtroom, enshrined within the Guidelines, what duties in the direction of the courtroom do the clinicians bear? How is the courtroom to check whether or not the SIHIS professional forma is in reality uncontroversial and full? How can mother and father, accused of abusing their youngsters, be assured that the SIHIS report is full, and honest, correct and proper? There are all kinds of questions round transparency and accountability, and albeit none of them had been answered on the assembly. Absolutely they should have been debated among the many architects of the pilot, sooner or later?

The questions go on, and the issues mount. Some may observe that in a jurisdiction as essential as this, the place courts are making genuinely life-changing choices day by day, it could be extraordinary to allow the principles of pure justice to be eroded by committee suggestions, groupthink, steerage or different kinds of pronouncements, with none parliamentary scrutiny. On this jurisdiction, uniquely, we’re already able the place these accused of inflicting accidents upon their youngsters usually are not permitted to instruct their very own consultants to help of their defence. We’re already able the place there are important (and for a lot of, discomfiting) constraints upon the cross-examination of consultants, in addition to their instruction within the first place. We’re already able the place there’s a noticeable disparity between particular person judges across the interpretation of steerage, the place a decide in a single city will instantly perceive why a celebration must be permitted to instruct or problem an professional opinion, however one 20 miles up the street would by no means allow this. All these elements (and this record will not be exhaustive) can quantity to a menace to the fundamental guidelines of pure justice.

The SIHIS pilot, relying upon its operation on the bottom, may signify one other menace. We’re already uncomfortably shut, in some courts, to decreasing the scrutiny of professional opinion to little greater than a paper train, undertaken by legal professionals with no medical {qualifications} in any respect. The SIHIS pilot carries an actual threat of additional steps in that, wholly unacceptable, course. A transfer in the direction of higher and multidisciplinary analysis, remedy and medical reporting within the NHS is to be welcomed. However it’s simply as clear that the elemental guidelines of pure justice can’t and should not be sacrificed on the altar of pace and effectivity. Sufficient is sufficient.

John Vater KC is a barrister and arbitrator at Harcourt Chambers, London