‘Ellie, he’s surely not saying that we missed …’
‘He is!’
‘I’ll look at the pictures and call you back.’
I felt sick. Was it possible that I had examined a dead baby who had been abused and murdered and failed to spot the evidence for this? And actually given SIDS, exonerating the parents and endangering any future babies they might have? And had the evidence been so obvious that eighteen months later another pathologist could pick it up just from the photographs?
I dug out the file. Baby Noah was many cases ago. I tried to remember that day.
I had been called to the mortuary by the police because the mother had found her baby dead in the morning. Waiting for me in the lounge area next to the inevitable mortuary fish tank was Ellie – the post-mortem of a child whose death is suspicious must be carried out by two pathologists, one forensic, one paediatric. Ellie is good to work with: witty and wise, she demonstrates a 100 per cent certainty about her own conclusions that I secretly envy.
Now I flicked through my notes. The mother gave Baby Noah a bottle at 8 p.m. and, since he was sniffling, also some paracetamol. He went to sleep but had woken twice in the night. The first time, at about 2 a.m., the father had rocked him back to sleep. The second time was at 5 a.m. and the father was waking up anyway, since he was on an early shift. He settled the baby and left the house at 6 a.m. without really waking the mother. At 7 a.m. she had found the baby dead. She ran, screaming, into the street. A neighbour, who had seen resuscitation techniques demonstrated on EastEnders, ran in and attempted to revive the baby until the ambulance crew arrived to take over. Without success.
Pictures of the home had shown the disorder one expects to find where there is a new baby. There was little furniture because the place was dominated by large, plastic toys of the kind Grandma buys at Argos. The fridge was nearly empty except for milk and leftover takeaway cartons. Upstairs the bedroom was almost filled by the bed and cot: there were piles of baby clothes on the remaining floor area.
Most notable for us as pathologists was the temperature of the place. We saw pictures of the boiler thermostat downstairs set to thirty degrees and pictures of the bedroom radiators on max. The police had commented on how hot the house was. There is, of course, a strong association between SIDS and overheated babies.
Some time after we had completed our post-mortem report, a number of anomalies and untruths emerged. Moslem neighbours were shocked to find their bins full of empty alcohol bottles and mentioned this to the police. Noah’s parents later admitted that they had disposed of these bottles in the night. Toxicology extrapolated the father’s blood alcohol level at the time the baby was supposed to have first woken at 200mg/ 100ml, two and a half times the drink-drive limit. And the same tests revealed that both parents had been smoking cannabis.
The father had an old GBH conviction after a fight, but there was no history of domestic violence. The baby had an old shoulder injury, but this could easily have been caused by his very difficult birth. The police were clearly suspicious of this couple but could not really articulate why – although they did find out that the house was so hot because there was a small cannabis farm in the loft. The ambulance crew strongly suggested that the baby had been dead for a few hours, not just one as the mother insisted. But they weren’t sure. And all the marks on Baby Noah’s body could be explained by the untrained resuscitation techniques of the neighbour and the subsequent prolonged attempts of the ambulance crew.
Ellie and I had to agree on a cause of death. As the paediatric pathologist, she was going to write the report and I would make any corrections and then sign it.
Ellie was sure she knew what she wanted to say.
‘SIDS, Dick. It’s SIDS.’
‘But there’s too much about it that’s not quite right. I’d rather give “Unascertained”.’
‘We’re not here to pass judgement on them for having a few cannabis plants in the attic, for heaven’s sake. Or for liking a drink. They’re obviously not a chaotic pair of addicts. The father has a regular job, the baby was healthy and well cared for, they turned up for all their health-visitor appointments and vaccinations, there was a supportive wider family – the grandma, the sister. No, don’t let’s leave “Unascertained” hanging over a young couple who’re simply poor and doing their best.’
SIDS it was, then.
Except now another pathologist had looked at the post-mortem pictures and decided it wasn’t.
I put the pictures up on the screen. Here were the baby’s lips. They were redder than I remembered and the marks on them were more prominent, but there was no swelling or bruising. These were injuries caused during resuscitation. I then looked for the serial pictures of the inside of the chest showing the baby’s ribs. Sure enough, I could see some whitening in some areas. Which might indicate old fractures. Or was it just the glare from the photographer’s flash?
I phoned Ellie back: ‘The lips look redder and more marked in these pictures than they really were and there are actually some areas that look white on the back of the ribs –’ I could hear her exploding so I went on quickly. ‘We know that’s not how it was. If you look at the pictures closely enough, you’ll see some of the other organs are odd colours and there seem to be flash reflections littering the images. It’s the photos.’
‘Who took them?’ she roared. ‘Who took these rubbish pictures?’
I remembered how a SOCO had stepped forward rather shyly with the camera. Had it been his first ‘proper’ job? He had asked his senior for advice several times and then the auxiliary flash had stopped working, and he eventually had to rely on the camera’s own built-in flash.
When I looked through the rest of the photos I saw their quality was so poor that Baby Noah’s white nappy had a distinct blue hue. Why hadn’t I noticed this earlier?
‘Don’t worry, Ellie,’ I said. ‘It must just be a technical problem with the flash and it’s been made worse by the low resolution they’ve used to store the images.’
‘I’m not worried,’ she told me coolly. ‘Nope. I’m very, very angry. This pathologist who’s criticized us doesn’t do post-mortems himself. And he certainly wasn’t present at this one. The other forensic pathologists who looked at the body on behalf of the family agreed with us, didn’t they? How dare he challenge us when –?’
‘Because … well, have you read the rest of the file yet?’
‘No I have not!’
‘Because they’ve now found out all sorts of things about the parents. Stuff they didn’t know before. Which gives a different picture. We thought they were young and struggling and trying to make ends meet with their little cannabis farm in the loft … but now it turns out that the father already had a baby with someone else, down south somewhere. About four years ago. And it died. SIDS was given as the cause of death.’
That silenced even Ellie for a moment.
I said, ‘It doesn’t help that he’s a former heroin addict who until quite recently had a methadone script. I wish they’d told us all that.’
‘Oh, go on. Just victimize a man when he’s doing his best to get clean. Was he on methadone when the baby died?’
‘No.’
‘There you are, then.’
‘When he met the mother and had the baby he was really trying to live a better life; that’s how I read his police interviews.’
‘Exactly, and if we took every baby away from every recovering heroin addict, there wouldn’t be any children left in some parts of town.’
‘Listen, Ellie, we’ll go to court, give our evidence, explain that the photos are faulty and we’re sure the child did not have old fractures, explain that the radiologist agrees with us, and that will be an end to it.’
‘It won’t be so simple. We’ve given SIDS and they don’t want to hear that. I think they just want to take the next child away. It’s quite clear they believe Baby Noah was killed.’
‘Courts are briefed to find the truth, not what they want t
o hear.’
There was a loud noise halfway between a laugh and a snort and then she was gone.
The court case really didn’t worry me. In fact, I was quite curious. The Family Courts have retained their mystery for me as for everyone else because until now only my written evidence had been used. These courts deal with such personal, sensitive issues that they are absolutely closed to press and public: no one without a direct reason to be there is admitted, not even close relatives of the deceased or their family.
Ellie was waiting for me outside. She looked nervous.
‘You should see how many people are in there.’
‘How? Virtually no one’s allowed in apart from lawyers and witnesses.’
‘There are a trillion lawyers. The mother has a solicitor, a junior barrister and a QC. So does the father. So does the local authority. So does the new baby! Not three months old and she already has three lawyers! So that’s twelve of them for starters, then there are loads of officials. Dick, now they’re cutting back legal aid for criminal cases, lawyers must be into the Family Courts like vultures. Cases last for weeks here!’
I thought she was probably exaggerating.
‘Just as well there’s only one judge, then,’ I said. ‘Sounds as though there wouldn’t be room for a jury too.’
But once inside the courtroom I saw that the place was indeed thronged with lawyers. No one was technically on trial, of course. The defendant’s box was empty. It was one judge’s job to decide whether a baby should be taken into care or perhaps safeguarded in some other way. There were lots of factors he would take into account but whether, on the balance of probabilities, a parent had injured or killed Baby Noah was the central question. No trial then, just an investigation into the truth. But with a full adversarial presentation, barristers each questioning, cross-examining and arguing their clients’ case. I recalled that, as Aeschylus allegedly said, the first casualty of war is truth.
I was allowed to sit in the courtroom during Ellie’s testimony and so was able to see both parents. They sat separately and did not look at each other. They had a new baby but they seemed not to be together: of course, their legal teams would each now be playing the blame game.
The mother was angry. Overweight, barely moving, her face large as though swollen, she managed to create a sense of noise around her, swearing into the ear of her solicitor and sometimes out loud into the quiet courtroom. The father was very thin and he sniffed and fidgeted constantly as though the proceedings were keeping him from something more important. Like a fix. If they had really killed Baby Noah they were not to be pitied. But if they hadn’t … they looked like two unhappy, unloved people who perhaps had struggled to learn to love their baby.
In the witness box, Ellie was losing her cool. I watched with growing concern as barrister after barrister attempted to question her competence in giving SIDS as Baby Noah’s cause of death. When they had finished mauling her, I knew what was coming next.
Almost as soon as I had taken the oath, the first barrister began by pointing out that the baby had in fact been wearing a blue Babygro with green rabbits on it – annoyingly, Ellie had reversed the colours in the post-mortem report and I had failed to notice that the rabbits weren’t blue when I checked it. She had also made one small mistake over a date, reversing the month and day, which I had, once again, failed to notice. Not major errors but it was the usual quibbling at the start of an examination designed to challenge my competence and undermine my confidence before the big fight. And the big fight was, of course, going to be the baby’s lip injuries and the alleged fractures to the posterior ribs.
‘Dr Shepherd, do you agree that old, now healed, fractures to the baby’s back ribs would be a strong indicator of abuse over his short lifetime?’
‘I agree that, if there had been healed fractures, abuse would be one possible explanation.’
‘Did you look for such fractures?’
‘All the ribs were examined extremely carefully …’
I pointed out that the photos were poor and did not represent what we actually saw. This was brushed aside: ‘We can all see that the back ribs were previously fractured in the photos, Dr Shepherd. So why can’t you?’
We had the same conversation about the lip injuries.
‘Just look at the photographs, Dr Shepherd! The presence of injuries is obvious!’
I explained that, because of the way the images were stored, transmitted and then printed on a poor quality printer, they could not be relied upon. It was clear, though, that I wasn’t making any progress. They could see what they could see. I was either blind or stupid not to accept that and – if I was either – I was obviously deliberately obfuscating to avoid the fact that I – we, Ellie and I – with seventy years of pathological experience between us, had dismissed suffocation injuries as resuscitation injuries.
There followed as demanding an afternoon as I have ever spent in the witness box of any court, including the Old Bailey. And, in a way, it was worse – instead of one hostile barrister, there were many, representing all sides, each attacking me from a different angle. I managed to hold my ground, acknowledging the possibility that we could have been wrong but saying it was highly unlikely that two experienced pathologists would have missed such clear evidence of abuse.
‘Are you an osteopathologist, Dr Shepherd?’
‘No, I am not.’
‘But you were concerned about the baby’s ribs, the evident fractures at the front?’
‘Concerned that the fractures were open to interpretation, yes, but aware that violent resuscitation by an untrained neighbour had –’
‘You were concerned, but not concerned enough to submit the ribs to an osteopathologist for his specialist comments?’
‘It did not seem to me that he could shed any further light on the ribs. We had seen which ones were broken and we knew that –’
‘You thought you knew as much as the specialist, is that it?’
‘The radiologist said, in her opinion, there were no fractures at the back of the ribs. We had easily seen the fractures at the front. I felt the further knowledge of an osteopathologist would add nothing.’
‘Wasn’t that rather arrogant of you, Dr Shepherd?’
‘I do not consider myself an arrogant person. I am sorry if I appear that way.’
Alexander Pope’s lines appeared in my head as if my father had just inserted them there.
But you, with Pleasure own your Errors past,
And make each Day a Critick on the last.
‘Do you admit the possibility that you were wrong to give SIDS?’
‘Assessment of a cause of death in these cases is always very difficult, there’s a very fine line. On the evidence we had when we wrote our reports, SIDS took precedence. Had we been given fuller information about the circumstances of the baby’s life and death, I believe we would probably have chosen “Unascertained” instead.’
The surprise of my afternoon at the Family Court was not just the attacks on me professionally, but personally. The second surprise was the written judgment. It arrived some weeks later. I learned from it that there had been a series of witnesses in court over the weeks of the case who gave examples of how neglected Baby Noah had been by his parents. The mother had now emerged as an alcoholic, the father as a frequent drug abuser. The mother’s sister and an aunt had been stepping in to help with Baby Noah, inadvertently promoting a false impression of the mother’s competence to the health visitor and others. According to the judge, it was they who had ensured the baby was looked after and taken to his appointments and vaccinations.
He said that Baby Noah had been neglected and he was shocked by the refusal or inability of the two pathologists who examined the body to accept that they had missed such obvious and glaring marks of abuse – which could be seen in the photos by anyone. Indeed, he said the pathologists still seemed to think that SIDS might well be the cause of death. The judge did not make any mention that the photos were of, at be
st, variable quality. Nor of the lack of information provided to us about the parents on the day their baby died when we had carried out the post-mortem. Nor of any failure to update us as further information about the family was uncovered.
He went on to say that, on the balance of probabilities – which was the test he had to apply – he concluded that the father had killed Baby Noah. Under cross-examination it had been revealed that, on the night of the baby’s death, large quantities of drink and some drugs had been consumed and when the baby cried, the father had responded. The judge supposed that he probably did this by pressing down on the baby’s chest, and possibly his face, asphyxiating him and perhaps breaking his ribs. There was evidence, he said, from the baby’s posterior ribs, that something like this had in fact happened before. On this occasion, the mother had asked him to do anything to stop the baby crying and, although she was aware that he was behaving harshly to Baby Noah, she did nothing to intervene. Therefore, no other child should be left in the care of either parent. Their new baby was to be taken from them for adoption.
I cannot imagine how the parents of Baby Noah felt on receiving that judgment. I was so crushed by it that I believe I actually gasped for breath. It was impossible that harsh words from a judge about a Home Office pathologist would not cause considerable repercussions. I had reached the age of sixty and had tried hard to work through medicine in the interests of justice all my life. And now it seemed that balance and justice were being withheld from me.
That night, I could not sleep. I could barely breathe. Such critical comments must require investigation and, as a Home Office pathologist, I must report them to the Home Office. Would the Home Office then investigate me? Refer me to the General Medical Council? The GMC can take away from doctors the right to practise if they are found guilty of serious misconduct.
Unnatural Causes Page 34