Why we cannot believe Brian Deer about Andrew Wakefield
by John Stone
This is part of evidence I presented to the United Kingdom House of Commons Science and Technology Committee Inquiry into Research Integrity in 2017. It was never published by the Committee but after much argument they were forced to amend their discussion document, known as POSTnote 544, so that it did not directly allege that Andrew Wakefield committed fraud by only attributing the claim to British Medical Journal. It is dismaying that we are still having to rebut so many false claims so many years after the events. The publication of Brian Deer's book is now only a couple of months away, but it has also been sad to see distinguished Danish scientist, Peter Gøtzsche, recycling these allegations in a book of his own. Prof Gøtzsche is in many respects a hero because of his stand against SSRI antidepressants (which are also implicated in autism) and on the safety HPV vaccines, but when he sides with Deer on the subject of Andrew Wakefield we wonder whether he has on this occasion done due diligence.
Brian Deer
An Extract From Evidence to House of Commons Science and Technology Inquiry into Research Integrity 2017 by John Stone on Behalf of Age of Autism
I am grateful to the committee for the invitation to submit evidence on behalf of Age of Autism. This evidence has been shaped by statements made in the Committee’s prior publication POSTnote 544 singling out the Wakefield “Lancet paper” as an example of fraud, and particularly in relation to the defence of a public health programme and policy [1]. If these statements had not been made I might have presented somewhat different evidence, but in the circumstances it is necessary to address these claims and their underlying assumptions. It becomes particularly relevant in the light the latest campaign, led by Times Newspapers, to further discredit Andrew Wakefield.
This submission is not motivated by indifference to the control of infectious disease. What I am saying is that even though the control of disease is important it is not a good enough reason to stand the rules of research integrity or public discussion on their head. For this reason I have things to say not only about the Wakefield paper but the problematic nature of vaccine science, and also the general exclusion of the subject from contemporary mainstream public debate. Even the reasons for going to war at times of national peril are debated, but here it is as if everything has been conceded in advance to an industry and its public advocates. In these circumstances reasonable comment is driven to the margins with unreasonable, even to the extent of being buried by search engines such as google.
It is also problematic that virtually every public defence of the vaccine programme begins with an attack on the integrity of Dr Andrew Wakefield, as if the public humiliation of one man could provide scientific justification in perpetuity for an entire class of products. Wakefield has been globally transformed into the Emmanuel Goldstein of public health (to reference Orwell’s 1984) but we should not mistake that this is actually occurring at the level of propaganda and not of scientific (or historic) fact: indeed when people cite Wakefield as an example few have the remotest idea what body of facts they are citing, and this has reduced to zero the quality of informed public discussion. Meanwhile Wakefield’s fate serves as a warning to anyone else who might professionally step out of line. In this context I pose the question in what other field of human activity would this means of controlling public discussion and opinion be considered politically tolerable? I also pose the question how we can possibly know the vaccine programme is safe if we control opinion in this way?
From my perspective as an informed observer the Wakefield MMR episode ,though much more prolonged, is as shameful as the Kelly WMD episode as an example of how someone might be treated who crosses government policy, but beyond the personal issue what might being hidden (which might be keeping hold of the political agenda). If we turn the spotlight round I have never seen so many people go out of their way to put one man in the wrong in apparently egregious ways. The “outing” of Wakefield by Richard Horton, Evan Harris and Brian Deer in 2004 poses many questions: a basic one might be why the answer of the British establishment to a paper which had stood for six years was essentially the work of the Sunday Times’s casually employed social media correspondent (Deer).
In fact, the Lancet did not retract the paper for a further six years with the findings of the General Medical Council against Wakefield and his two colleagues Prof John Walker-Smith (its senior author and the senior clinician), and Prof Simon Murch. While a further two years later a High Court judge, Sir John Mitting, in clearing Walker-Smith (Wakefield not having been funded to appeal) over-turned the central findings of GMC, particularly in relation to the paper [2]. If he had found evidence (as claimed by the GMC panel) that the paper was based on a putative Legal Aid Board funded protocol, if the reporting had been inaccurate (Walker-Smith was responsible for the patient histories in 11 of 12 cases), if the investigations of the children had been unauthorised or unwarranted then Walker-Smith could not have been exonerated – nor were Mitting’s findings challenged by the GMC. However, Wakefield (and as it happens Murch) are left technically guilty of events which never occurred. The paper meanwhile has been left in limbo, not restored by the Lancet but not evidently an example of fraud. There is much more to say about this history but a High Court review of the evidence, unchallenged by the GMC seems a good place to start.
Another thing to remark on was that the “outing of Wakefield” was a public event of potentially extreme prejudice in February 2004 leading the BBC news for near four days. Jeremy Laurance reported in the Independent [3]:
At the Department of Health, which has striven for the past six years to bolster public confidence in the vaccine, joy is unconfined at the discrediting of Andrew Wakefield, as the researcher responsible for the scare.
Sir Liam Donaldson, the Chief Medical Officer, went on television saying [4]:
I don't think that spin and science mix. If they are mixed, it is a very unfavourable position for children's health. Now a darker side of this work has shown through, with the ethical conduct of the research and this is something that has to be looked at.
And the Prime Minister, Tony Blair, went even further endorsing the claims [5]:
There is absolutely no evidence to support this link between MMR and autism. If there was, I can assure you that any government would be looking at it and trying to act on it. I hope, now that people see that the situation is somewhat different to what they were led to believe, they will have the triple jab because it is important to do it.
Such was the public spirit of these events that I also well recall that so far from awaiting any further discussion or enquiry an NHS website “MMR the Facts” had linked right away to the website of Brian Deer. It could be said that a lot of jumping of the gun was going on in high places.
However, the story that the public were being told was flawed, not to say impossible: that Wakefield had somehow disguised his involvement in the MMR litigation for the past eight years, that this was not known to the Lancet (or for instance the MMR defendants). In fact, the Lancet editor, Richard Horton, seemed to have a multiplicity of stories. Anyone listening to news broadcasts in that week in February 2004 (or reading his book on the affair six months later) would have assumed that he had only just learnt of Wakefield’s involvement as the result of the Deer investigation, when the fact had actually been published in the Lancet only two months after the paper in 1998, in a letter from Wakefield. In the letter Wakefield insisted that there was “no conflict”, that is the paper (a review of clinical cases) was not affected by the fact that he was being retained by as an expert by the court in the MMR litigation.
A Rouse suggests that litigation bias might exist by virtue of information he has downloaded from the internet: from the Society for the Autistically Handicapped. Only one author (AJW) has agreed to help evaluate a small number of these children on behalf of the Legal Aid Board. These children have all been seen expressly on the basis that they were referred through normal channels (eg, from general practitioner, child psychiatrist, or community paediatrician) on the merits of their symptoms. AJW has never heard of the Society for the Autistically Handicapped and no fact sheet has been provided by them to distribute to interested parties. The only fact sheet we have produced is for general practitioners, which describes the background and protocol for the investigation of children with autism and gastrointestinal symptoms. Finally, all those children referred to us (including the 53 who have been investigated already and those on the waiting list that extends into 1999) have come through the formal channels described above. No conflict of interest exists.
When this was pointed out in two newspapers, however furtively - a week after Horton had made the allegation on BBC news - the BBC refused to broadcast a correction. I personally contacted the head of BBC news, Richard Sambrook, who told me to contact the Today programme science correspondent Tom Feilden, who ignored a series of emails. One might have thought it was not a small difference.
When Wakefield claimed there was no conflict he was apart from anything following convention (certainly of time and mostly probably subsequently) that acting as an expert witness did not constitute a conflict. This was pointed out in a letter to The Times by barrister Robert Hantusch (24 February 2004):
... the courts do not consider that the engagement of someone to act as an expert witness in litigation has the effect that that person is then biased. Indeed, if this were the legal position, no paid professional could ever at any time give evidence to a court.
And the same explanation was offered on the other side by Public Health Service Laboratory scientist Elizabeth Miller in a letter to Private Eye (19 March 2004):
...there can be no conflict of interest when acting as an expert for the courts, because the duty to the courts overrides any other obligation, including to the person from whom the expert receives the instruction or by whom they are paid.
In this regard it is essential to re-visit the evidence given to the Science and Technology Committee on 1 March 2004 by Mr Crispin Davis, the proprietor of the Lancet and CEO of medical publisher Reed Elsevier, being examined on behalf of the committee by Dr Evan Harris (who had himself accompanied Brian Deer to the Lancet offices less than two weeks previously). The exchange went as follows:
Davis: At the time of the submission of the article there was no admission of conflict of interest. Three months later there was a written letter. I think I have got it somewhere here.
Harris: I have it here as well, 7 May 1998 [correctly 2 May].
Davis: It actually says, 'There is no conflict of interest'. Should the editor then—
However, this is completely misleading. Both men had Wakefield’s letter in front of them but no one could guess from the exchange as heard or printed that Wakefield had actually affirmed that he was working for the court rather than having denied it. The position was, in fact, the exact opposite to impression given in the exchange. It should be said that Wakefield was being thoroughly correct: he was not disguising his involvement but it was not something which by convention constituted “a conflict”, and the position was just the same for him as for countless other “experts” who give evidence and are paid.
Rather more problematic, if Harris and Davis were being hyper-fastidious about Wakefield’s alleged conflicts they were not being open about their own. In the case of Harris, his father Frank was a Committee on Safety in Medicines veteran who was sitting in autumn 1992 on the vaccine adverse reactions committee, ARVI, when SKB and Pasteur Merieux – pre-cursors to GSK and Sanofi Pasteur – had withdrawn their faulty MMR products, Pluserix and Imravax, from the British market, leaving the Department of Health high and dry (and without having had any advice to withdraw the products from their own committees). Crispin Davis, on the other hand, failed to mention that he had recently been appointed as a director of GSK [7] or that his own brother Sir Nigel Davis (now Lord Justice Davis) had three days before ruled in a closed hearing against the MMR litigation continuing [8]. Both Harris and Crispin Davis – who had behaved so censoriously about Wakefield – had major undisclosed conflicts in the matter, which belies their “holier-than-thou” approach.
Horton’s fall-back position which was not widely broadcast (and not even mentioned in his book) was not hugely plausible either. He wrote in the Lancet (17 April 2004):
We do not accept Andrew Wakefield and colleagues' interpretation of the letter published in The Lancet on May 2, 1998,..which was, in any event, only published 3 months after the original 1998 Lancet paper.
But this is stretching a point (not to mention time) absurdly. The publication of the letter (the timing of which lay in the hands of journal) was not three months but two months (9 weeks) after the publication of the paper. This point became part of the prosecution with the GMC counsel, Sally Smith QC, extending the spurious 3 months to 4 (!!!):
Looking at the wording of the sentence you referred to "only one author that agreed to evaluate a small number of these children on behalf of the Legal Aid Board", you say you took that to mean since the publication of the paper and we are now some three or four months on.
to which Horton replied with a solitary “Yes” (Day 17 GMC Hearing). But Wakefield was responding to a letter dispatched by Dr Rouse two working days after the publication of the paper and was referring to the situation at the time of publication, so this would have been by no means a competent reading by a senior journal editor. If he got this wrong it was very much his fault, not Wakefield’s. Even after Wakefield’s letter was published on 2 May 1998 the issue of Wakefield’s court role did not seem to be controversial with the Lancet, and he was not required to declare it as a conflict in following publications in the journal. Once again it very much looks as if Dr Horton was trying years later to have his cake and eat it.
On top of this at the hearing Wakefield (Day 55) provided evidence that Horton and the Lancet had been apprised of his position as an expert witness in the MMR litigation by Richard Barr of the law firm Dawbarns in April 1997 months before the paper was even submitted: Barr was requesting the use of copyright material for a fact sheet about the litigation. It is noteworthy that in his statement read to the GMC (Day 111) Horton only denies that he read the Dawbarns fact sheet but not that he read the letter. However, the conclusion must be that if Horton had searched the Lancet’s files he could not have made the allegations in the first place in 2004, which were repeated in modified form under oath in 2007. If he had acted in this responsible fashion he would just have had to conclude that the journal knew all along. Notwithstanding, on his own testimony in the book MMR Science and Fiction Horton was discussing with a GMC official how to prosecute Wakefield three days after he made the allegations:
In truth, they (the GMC) had not a clue where to begin. At a dinner I attended on 23 February (2004), one medical regulator and I discussed the Wakefield case. He seemed unsure of how the Council could play a useful part in resolving the confusion. As we talked over coffee while the other dinner guests were departing, he scribbled down some possible lines of investigation, and passed me his card, suggesting that I contact him directly if anything sprang to mind. He seemed keen to pursue Wakefield, especially given ministerial interest. Here was professionally led regulation of doctors in action - notes exchanged over liqueurs in a beautifully panelled room of one of medicine's most venerable institutions (p7-8)
This was another extreme conflict which did not stop him giving evidence at the hearing.
….
The driving force for “the outing of Wakefield” nevertheless came from the Sunday Times. In January 2012 the editor-in-chief of the Sunday Times then (and in 2004), John Witherow, told the Leveson Inquiry that the newspaper would not engage in fishing [9]. This in itself seems to be contradicted the investigating journalist’s, Brian Deer’s , account of the matter. Writing in the British Medical Journal after the GMC findings Deer wrote (2 February 2010):
For me the story started with a lunch. So many do. "I need something big," said a Sunday Times section editor. "About what?" I replied. Him: "MMR?"…So I took an empty notebook and made my own inquiries.
Once again this was a matter vitiated by potential conflict: the editor, Paul Nuki, was the son of Committee on Safety in Medicines veteran, Prof George Nuki [10], and by 2007 Nuki junior had moved to a new post as Chief Editor of NHS Choices. Paul Nuki accompanied Deer and Evan Harris to deliver their allegations at the Lancet offices on 18 February 2004. Of course, we are not told why Paul Nuki needed something “big” but it seems likely that it was in relation to the defence of MMR rather than the opposite. Possibly, Nuki also had in mind an earlier hatchet job of Deer’s on Margaret Best, a successful Irish litigant on behalf of her son Kenneth over the DPT vaccine. This would explain why Deer engaged in the practice of blagging, interviewing two MMR litigant friends under a disguised name, Brian Lawrence (Lawrence was in fact his middle name).
When a group of parents, including myself, approached the Leveson Inquiry about Deer’s investigation in 2011 we highlighted [11]:
-The circumstances in which Deer was hired to conduct a fishing expedition
-Deer’s use of an alias
-Deer’s obtaining of confidential medical records
-That Deer had launched a secret series of complaints about Wakefield and colleagues to the GMC while continuing to report as a disinterested party
-That Deer received support from MedicoLegal Investigations, an agency affiliated to the Association of the British Pharmaceutical Industry (ABPI)
-That Deer had been able to launch a new wave of allegations against Wakefield in February 2009 immediately following the appointment of the CEO of the Sunday Times and News International, Mr James Murdoch, to the board of GSK with a brief to help protect the reputation of the group.
What transpired was that Lord Leveson allowed News International to veto discussion of these matters in their role in the inquiry as “core participants” although everyone thought they were the main subject of the inquiry.
From: Leveson Inquiry Solicitors Team [mailto:[email protected]]
Sent: 23 February 2012 10:20
To: 'martin hewitt' Cc: Leveson Inquiry Solicitors Team
Subject: Leveson Inquiry
Dear Mr Hewitt
Thank you for your letter, in response to the points you make the Inquiry makes the following response.
Prior to your submission being published it is circulated to the Core Participants who may comment or object to the statement being published. In your case, the Sunday Times objected and as stated in my letter the Inquiry Team does not consider it necessary to resolve the differences between your account and the account of events that have been provided by the Sunday Times. By reason of this conflict of evidence on the face of the written submissions, and the fact that the Inquiry will not hear oral evidence on this issue, the Inquiry Team does not consider that it would be appropriate to take your submission as formal evidence to the Inquiry.
Many thanks
Abi Brooks
It was also once again problematic that both Lord Leveson and Robert Jay QC, the two main legal officers in the inquiry, had been at an earlier stage involved by a remarkable coincidence in denying the claims of the MMR litigants: Jay having represented the Legal Services Commission when they sought to remove funding [12], and Leveson down the line having upheld the never published findings of Sir Nigel Davis [13]. Of course, there was no point in appealing to the self-appointed watchdog Hacked Off (although it was tried) since it boasted Dr Evan Harris as an a director and adviser [14].
Leveson was by no means even handed. While the behaviour of the Sunday Times and its journalist lay well within his brief the issue of the reporting of science scarcely did, which did not stop him taking evidence from Fiona Fox of the industrial lobby organisation Science Media Centre or taking time once again to condemn Wakefield as a maverick scientist in his first report. It is a troubling idea that unethical journalism against the public had its place in support of government policy. Also interesting to note that when the Department of Business set up a committee to consider the future of science journalism in 2009 (which in itself could be a disturbing idea) Fiona Fox was placed at the head with members Paul Nuki – who hired Mr Deer - and Martin Moore, who was to become chair of Hacked Off [15].
Regarding the Deer investigation, Mr Deer states on his website (and has stated for a long time) [16]:
For reference, with regard to Brian Deer's MMR investigation, almost all of the key facts and documents are not public domain, and, such is the culture of plagiarism, he will act against authors who represent his writing, interviews, documents, or other research, as the fruit of their own inquiries, whether referenced or not.
The problem with such a statement is that not only should he not have such documents – ie private medical and legal documents – we only have his word for what is in them. When in 2010 Brian Deer stated in BMJ Rapid Responses [17]:
I know the names and family backgrounds of all 12 of the children enrolled in the study, including the child enrolled from the United States.
several letters responding this declaration were removed following “a legal complaint” [17] as well as the mild comment of Dr F Edward Yazbak, a board registered paediatrician in the United States:
I must say I am troubled that Mr Deer was able to obtain the names and family backgrounds of the original 12 study patients.
In fact, Mr Deer had published several of the names on his website prior to the GMC hearing against the doctors. It does not seem to help that Mr Deer was being aided by a member of both the House of Commons Science and Technology Committee and British Medical Association Ethics Committee, Dr Evan Harris MP. While this might have added a veneer of respectability to the Sunday Times allegations Dr Harris’s presence could by no means make it legal. This remains a question for Dr Harris. The removal of these awkward comments from the BMJ it may be pointed out preluded the further publication by the BMJ of Mr Deer’s allegations in January the following year. If the BMJ had acknowledged these concerns rather than having them removed it would have embarrassed them further down the line.
That Mr Deer was assisted by MedicoLegal Investigations (an agency affiliated to the Association of the British Pharmaceutical Industry) was attested by a report on their website at the time of the investigation. MLI executive Peter Jay states in their March 2004 newsletter [11]:
We were asked to advise on matters that were clearly quite alarming. It is rewarding to know that our knowledge and understanding of research problems is recognised.
The history of Deer’s hidden complaints is well covered in a Spectator blog by Melanie Phillips [18]. The first of Deer’s complaints to the GMC, unknown to Sunday Times readers at the time, was launched just three days after the first of his articles. This was a position the GMC lawyers seemed happy to cooperate with, not naming him as complainant or making public his role, disguising the fact that he was actively stoking a legal process when he had a vested interest in the outcome, while allowing him to continue to report on the story. At the GMC hearing I was witness to one receptionist telling another that Mr Deer did not sign the visitor’s book. Whatever his status Deer was the only person who complained, and whose complaints were brought forward. Phillips’s article also highlights the fact that on Deer’s own testimony he was running documents to the US vaccine court for their autism Omnibus hearing, to which they would not otherwise have had access.
On 3 February 2009 the Guardian reported that James Murdoch had been appointed to the board of GSK with an income of £75,000 a year with a brief [19]:
…to help review "external issues that might have the potential for serious impact upon the group's business and reputation”
Just six days later the Sunday Times unleashed a new wave of Mr Deer’s allegations (later re-cycled in the British Medical Journal) with a further five attacks on Wakefield’s integrity appearing in News International publications in the following week [11]. It is obviously troubling that a media mogul could be enlisted to help protect the reputation of a pharmaceutical company. Equally troubling is that a government inquiry set up to protect the public from the media should have allowed News International to veto these lines of inquiry.
My correspondence with the committee has covered the subsequent re-cycling of Mr Deer’s allegations in 2011, when the journal labelled the Wakefield Lancet paper fraudulent, as cited by the committee [1]. The claims made were problematic in many respects. The editorial which made this claim was signed by Dr Harvey Marcovitch who was simultaneously head of GMC panels. Even though this was disclosed it surely belongs to the category of conflict which should be avoided altogether. Dr Marcovitch was also apparently, it emerged, the single “external” peer reviewer of Mr Deer’s articles which were published as being “externally peer reviewed” despite being an associate editor. The journal failed to disclose its own commercial conflicts receiving advertising revenue from MMR manufacturers GSK and Merck, or that its Learning division received unrestricted grants from Merck [1].
From the start BMJ were very defensive about Mr Deer’s data analysis. The BMJ had failed to recognise Mr Deer was basing his interpretation on GP records which were not available to the authors of the paper (or that he did not have access to the children’s Red Books, which were). They were also obstructive about publishing criticisms of Mr Deer’s interpretation of the children’s records. Matters came to head in November 2011 when a leading US whistleblowing scientist Dr David Lewis submitted an article to the BMJ which showed among other things that the paper’s disputed reporting of the biopsy slides had been truthful. This led to the BMJ’s editor in chief, Fiona Godlee, Mr Deer and their expert advisor, Prof Ingvar Bjarnason making significant admissions in Nature News [1].
It also put Dr Godlee in a quandary. If the disputed biopsy results were still supported by the papers’ histopathologist co-authors, as they had been in letters from them to the journal – and not somehow cooked by Andrew Wakefield on his own – perhaps the time had come to go after them too. This was a questionable way to proceed given that Dr Lewis had also produced documentary evidence that readings were properly founded. It was in these circumstances that she apparently wrote to then chair of the Science and Technology Committee, Andrew Miller, asking for the committee to do this in place of University College London - who were getting cold feet - and Miller wrote back on behalf of the committee declining to be involved.
You also indicate concerns about the broader questions of whether or not UCL adequately investigated the roles of all those who put their names to Dr Wakefield’s papers and whether there was pressure to minimise any investigations in order to protect the institution. These relate to the integrity of the academic institution as a whole and are not simply an issue of whether or not the institution promotes ‘good science’. This is a matter rather for a body such as HEFCE, which has the task of ensuring academic standards in publicly-funded bodies.
I believe one thing to recognise about all this is how prejudicial it is. When Dr Godlee, on the face of it, finds that one reason for disregarding the validity of the paper fails, she ends up looking for another one: the possibility that it might have been sound in first place cannot be considered. She could not simply accept that she was mistaken, which would perhaps have been the most honourable and realistic thing to do. By this stage there seemed to be an awful lot more wrong with the attack on Wakefield’s paper than anything in it.
Hot on the heels of these events at the end of 2011 came the High Court hearing for Dr Wakefield’s co-defendant at the GMC, Prof John Walker-Smith and his exoneration. It is necessary to understand that Prof Walker-Smith was both the lead clinician and the senior author in the paper, for which reason the central case against Dr Wakefield had originally been contingent on the case against Prof Walker-Smith, who had been globally the leading pioneer in the field of paediatric gastroenterology for three decades. The failed claim of Mr Deer and the GMC was that the Lancet paper, which was published as “an early report” was an ill-conducted version of a Legal Aid Board funded research protocol 172-96, rather than simply a review of clinical cases seen on the basis of referral, albeit some of the parents may have contacted Dr Wakefield prior to their referral. This was partly an accident of history, that Prof Walker-Smith had moved his department from Barts (where he had practiced since the early 1970s) to the Royal Free in 1995, but it was certainly the correct place to refer unusual cases.
At the GMC the panel stated in its findings [13]:
The Panel has heard that ethical approval had been sought and granted for other trials and it has been specifically suggested that Project 172-96 was never undertaken and that in fact, the Lancet 12 children’s investigations were clinically indicated and the research parts of those clinically justified investigations were covered by Project 162-95. In the light of all the available evidence, the Panel rejected this proposition.
And this was exactly what was dismissed by Mr Justice Mitting [13]:
Its conclusion that Professor Walker-Smith was guilty of serious professional misconduct in relation to the Lancet children was in part founded upon its conclusion that the investigations into them were carried out pursuant to Project 172-96. The only explanation given for that conclusion is that it was reached “in the light of all the available evidence”. On any view, that was an inadequate explanation of the finding. As it may also have been reached upon the basis of two fundamental errors – that Professor Walker-Smith’s intention was irrelevant and that it was not necessary to determine whether he had lied to the Ethics Committee, it is a determination which cannot stand unless it is justified by the detailed findings made in relation to the eleven relevant Lancet children.
So, we are left with the remarkable situation that after two and half years of hearings the GMC could not identify what the evidence was, if any, that led them to their conclusion. Indeed, at the High court hearing a further two years on the GMC’s counsel having failed once again to identify what this evidence was prevailed on Judge Mitting to see whether he could find any, and he could not.
This helps to explain why the GMC never took the matter to the Court of Appeal, and it remains anomalous that these disproven findings remain against Dr Wakefield and Prof Murch: that they remain technically guilty of something which was never shown to have occurred after three years of investigation and two and a half years of hearings. That, however, is somewhat typical of this history. Of course, this does not cover all the findings against Dr Wakefield but it poses a fundamental question about the spirit in which the hearings were conducted and specifically covers the issue of whether the paper was “a fraud”.
As I have already written to the committee the case that the paper was a fraud took a final beating in 2012 University College London, with the advice of the United Kingdom Research Integrity Office concluded that there was insufficient evidence to pursue an in inquiry [1].
Before leaving the topic of the GMC hearing there are some other troubling matters to visit. One was that as we have seen the GMC and its lawyers had played a deception on the public by allowing it to remain undisclosed that the principle journalist reporting the matter was also the only author of complaints brought forward by the GMC against the doctors.
Another issue was that the hearing was originally to take place under the chairmanship of Prof Dennis McDevitt who had sat on the government’s vaccines’ adverse reaction committee ARVI when it had failed to advise the removal of the SKB Pluserix vaccine before the manufacturer finally decided to remove it from the British market – ARVI being a sub-committee of Committee on Safety of Medicines (CSM) which advised medical licensing authority the MCA (which later became the MHRA) and the Joint Committee on Vaccines and Immunisation (JCVI) [20]. We have seen that Prof Frank Harris, the father of Dr Evan Harris, also sat on this committee. The Pluserix issue has been a continuing embarrassment to the Department of Health because when it was introduced in 1988 the manufacturer had already withdrawn it by agreement in Canada, pending investigation, following reports of mumps meningitis. The United Kingdom market was likely being offered up to SKB (a then non-British company) in its forthcoming merger with Beecham (the merger with GlaxoWellcome followed in 2001-2). Meanwhile, the NHS as purchasers of the Pluserix signed an indemnity which gave it ultimate liability if SKB (later GSK) was sued.
When Prof McDevitt withdrew after press enquiries he was replaced by Dr Surendra Kumar whose background was not known to the defendants. It emerged only after the hearing had commenced that Dr Kumar had sat on the CSM in 1996-9 (Day 3) and was presently on two MHRA committees and owned shares in GSK (Day 101) although the CSM itself was no longer in existence. Shortly after the hearing was finally over in the summer of 2010 Dr Kumar demonstrated palpable prejudice by leading a British Medical Association debate calling for the MMR to be made compulsory [21].
It is necessary to consider what was involved here. In the first place if the GMC had been playing straight they would surely have replaced Prof McDevitt with somebody who did not have similar conflicts. But it was also impossible to do anything about it once the hearing had commenced unless it was to be abandoned and started all over again, which was a hugely unattractive prospect. It should also be borne in mind that the MHRA is an agency of the Department of Health entirely funded by the pharmaceutical industry. In 2005 report House of Commons Health Committee reported [22]:
…The regulator, the Medicines and Healthcare products Regulatory Agency (MHRA), has failed to adequately scrutinise licensing data and its post-marketing surveillance is inadequate. The MHRA Chairman stated that trust was integral to effective regulation, but trust, while convenient, may mean that the regulatory process is not strict enough. The organisation has been too close to the industry, a closeness underpinned by common policy objectives, agreed processes, frequent contact, consultation and interchange of staff. We are concerned that a rather lax regime is exacerbated by the MHRA’s need to compete with other European regulators for licence application business.
So judgment was coming from a source clearly aligned with government policy, and evidently the GMC did not want it to come from anywhere else.
Another issue was the apparently illegal transfer of documents from the MMR litigation by Legal Services Commission (formerly the Legal Aid Board, and currently the Legal Aid Agency) to the GMC and their lawyers for the purposes of the hearing. The LSC had sought to end the MMR litigation in 2003 around the same time that Brian Deer was approached by the Sunday Times and Paul Nuki to find something “big” on “MMR” but some of the cases – not associated with autism – lingered on till 2007, just before the GMC hearing. This transfer was prohibited under the Medical Act of 1983. After many enquiries I was passed on by the GMC to their lawyers Field Fisher Waterhouse who wrote to me on 12 September 2012:
We are instructed by the General Medical Council (GMC), who have forwarded to us your email of 2 August 2012 to Mark Ellen about the legal basis on which GMC issued and served a notice on the Legal Services Commission (LSC) pursuant to Section 35a of the Medical Act 1983 (as amended). This notice was issued by the GMC as part of its fitness to practice proceedings against Dr Wakefield, Prof Walker-Smith and Dr Murch. We acted for the GMC in those fitness to practice proceedings and it is for this reason that the GMC have asked us to respond direct to you in answer to your query.
The existence of section 38 of the Legal Aid Act, to which you refer, was raised with us by LSC when we first approached them with a request for information. In consequence, advise from counsel was sought who advised that it should be possible for the LSC to provide information to GMC within the ambit of the exemption provided under section 38(2) which permits the disclosure of information “in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it”. This was put to the LSC and it was under this basis that the notice under section 35a was issued and served.
Yours faithfully
Field Fisher Waterhouse LLP
Someone has signed in hand “Field Fisher Waterhouse” but no officer of the firm is identified or gives their signature. It is evident that section 38(2) of the Legal Aid Act may have enabled the Legal Services Commission to reveal some general information about a case without disclosing anything of legal consequence or breaching confidentiality, and this would not have been useful to the GMC prosecution (where in fact whole documents naming people were read out). The inference would be that when (as apparently happened) the Legal Services Commission provided material which well exceeded the limitations of section 38(2) of the Legal Aid Act the GMC and their lawyers should have returned such material as provided in error, rather than used it in the proceedings. Not only does this seem to have been illegal, and a breach of the rights of the litigants, it left Dr Wakefield having to try and answer questions on matters to which he had never been party, as if he was responsible for them. Clearly, this should not have happened, and on the face of it is a case of monumental executive abuse....
Notes (links from March 2017).
[1] See Appendix 1 Stone, email correspondence with S&T Committee, January 2017.
[3] Jeremy Laurance, 'Ministers temper their triumphalism but delight spreads at Whitehall', Independent 24 February 2004.
[4] James Meikle, 'Claim that MMR work mixed science and spin', Guardian 24 February 2004.
[5] BBC NEWS, Top doctor wades into MMR debate', http://news.bbc.co.uk/1/hi/health/3512195.stm
[6] Joint sub-committee on adverse reactions to vaccination and immunisation meeting 17 September 1990 – the last to be available on line shows Prof Frank Harris in attendance. http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@ab/documents/digitalasset/dh_095307.pdf
[7] http://www.wikinvest.com/stock/GlaxoSmithKline_(GSK)/Sir_Crispin_Davis
[8] http://www.foiacentre.com/news-MMR-judge-070509.html
[9] http://leveson.sayit.mysociety.org/hearing-17-january-2012/mr-john-witherow
[10] Prof Nuki was for instance in attendance at the CSM meeting at the time of the introduction of MMR/Pluserix September 1988.
[11] See Appendix 2, Submission to Leveson (Hewitt, Stone, Thrower and Welsh).
[12] R (Williams) v Legal Services Commission [article 6 and reasons challenge to LSC's decision to withdraw public funding for the MMR litigation: report of decision currently embargoed] https://web.archive.org/web/20130515100422/http://www.39essex.com/members/cv.php?id=15
[13] http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/155.html Appeal before Lord Justice May against Leveson J of 14 October 2005
[14] http://hackinginquiry.org/mediareleases/dr-evan-harris-and-daisy-cooper-appointed-joint-executive-directors-of-hacked-off/ When Hacked Off and Dr Harris were challenged about his involvement with Mr Deer’s investigation he issued a denial which stood against the detailed public record http://www.ageofautism.com/2012/01/evan-harris-distances-himself-from-brian-deer-position-remains-untenable.html
[16] http://briandeer.com/copyright.htm
[17] http://www.bmj.com/content/340/bmj.c644/rapid-responses
[19] https://www.theguardian.com/media/2009/feb/02/james-murdoch-in-glaxosmithcline-role
[20] Private Eye 8-21 June 2007 ‘MMR Conflict of Interest Zone’ . Joint sub-committee on adverse reactions to vaccination and immunisation meeting 17 September 1990 – the last to be available on line shows Prof Dennis Mc Devitt in attendance. http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@ab/documents/digitalasset/dh_095307.pdf
[21] http://www.scotsman.com/news/doctors-reject-calls-for-enforced-pre-school-immunisation-1-815811