Day 30 GMC Fitness to Practice hearing for Andrew Wakefield

GENERAL MEDICAL COUNCIL

FITNESS TO PRACTISE PANEL (MISCONDUCT)



Thursday 29 August 2007

Regents Place, 350 Euston Road, London NW1 3JN



Chairman: Dr Surendra Kumar, MB BS FRCGP


Panel Members: Mrs Sylvia Dean
Ms Wendy Golding
Dr Parimala Moodley
Dr Stephen Webster


Legal Assessor: Mr Nigel Seed QC




CASE OF:

WAKEFIELD, Dr Andrew Jeremy
WALKER-SMITH, Professor John Angus
MURCH, Professor Simon Harry


(DAY THIRTY)



(Transcript of the shorthand notes of T. A. Reed & Co.
Tel No: 01992 465900)



A P P E A R A N C E S


MS SALLY SMITH QC and MR CHRIS MELLOR and MR OWAIN THOMAS of counsel, instructed by Messrs Field Fisher Waterhouse, solicitors, appeared on behalf of the General Medical Council.

MR KIERAN COONAN QC and MR NEIL SHELDON of counsel, instructed by Messrs RadcliffesLeBrasseur, Solicitors, appeared on behalf of Dr Wakefield, who was present.

MR STEPHEN MILLER QC and MS ANDREA LINDSAY-STRUGO of counsel, instructed by Messrs Eastwoods, Solicitors, appeared on behalf of Professor Walker-Smith, who was present.

MR ADRIAN HOPKINS QC and MR RICHARD PARTRIDGE of counsel, instructed by Messrs Berrymans, Solicitors, appeared on behalf of Professor Murch, who was present.








I N D E X

Page No


Statement of DEBORAH DAVIES, read 1

Supplemental statement of DEBORAH DAVIES, read 6

SARAH AYLWIN, Sworn

Examined by MS SMITH 8
Cross-examined by 18
Questioned by THE PANEL 19
Re-examined by MS SMITH 21


THE CHAIRMAN: Good morning, everyone. Mr Thomas?

MR THOMAS: Good morning sir. The first thing we are going to do this morning is read the statement of Deborah Davies. It has been agreed by all the defence counsel that it is appropriate that her statement be read, and none of them require her to come to give oral evidence, so that is what I propose to do now.

I am going to hand to the Panel copies of two statements made by this witness. (Same handed and marked as C10, and the supplemental statement as C11.)

THE LEGAL ASSESSOR: Mr Thomas, have these been redacted in any way? Will they be the same as I have?

MR THOMAS: Yes, they have been redacted to remove reference to documents which are irrelevant and which have never been part of the bundle.

As I go through this statement there are a small number of documents to which she refers, and I am going to take the Panel to those documents as we go along. They are all to be found in FTP1. The first statement reads:

STATEMENT OF DEBORAH DAVIES, Read

“I, Deborah Davies, will say as follows:

I am employed as Personal Assistant to the Chief Executive of the Royal Free Hampstead NHS Trust (‘the Trust’). Prior to this role from 2003 – 2005 I was employed as the Legal Services Advisor at the Trust.

I attach as exhibit DD1 a bundle of documents which have been disclosed to the General Medical Council by the Trust which comprise Dr Andrew Wakefield’s personnel file.

The documents contained in that file are as follows:

…

(vi) Letter from John Cooper (Chief Executive of the Trust) to Dr Wakefield dated 21 January 1994, signed by Dr Wakefield dated 1 February 1994.”

That document is at pages 44 and 45 and I will take you to that in a moment.

(vii) “Medical Protection Society Membership Certificate dated 10 November 1993 for Dr Wakefield.”

That document is at page 39 and I will take you to that in a moment.

(viii) “GMC Annual Registration Certificate for Dr Wakefield commencing 12 August 1993”

– page 22.

I will take you to the documents at this stage, so if you would go to page 44 of bundle FTP1. This is a letter to Dr Wakefield from John Cooper, the Chief Executive of the Royal Free Hampstead NHS Trust, dated 21 January 1994, in which he says:

“Dear Mr Wakefield,

I am directed by the Royal Free Hampstead NHS Trust to offer you an appointment as Honorary Consultant in Experimental Gastroenterology at the Royal Free Hospital with effect from 1 January 1994 linked to your paid employment with the Royal Free Hospital School of Medicine.

The terms and conditions of the appointment are those of the Royal Free Hampstead NHS Trust as amended from time to time, in so far as they relate to honorary appointments.

The Trust requires you to be a fully subscribed member of a recognised professional defence organisation, and to produce to the Trust forthwith and on renewal the receipts for the payment or renewal of subscriptions.

You are required to be registered with the General Medical Council during the period of your appointment.

No specific clinical sessions are designated under the terms of this honorary appointment.

You are required to be registered with the General Medical Council during the period of your appointment.

The appointment is subject to three months notice on either side.

If you agree to accept the appointment on the terms specified above, please sign the form of acceptance at the foot of this letter and return it to me. A second signed copy of this letter is attached, and should be retained by you for future reference.”

Then there is a statement at the foot of the letter:

“I hereby accept the appointment as the terms and conditions set out in this letter with effect from 1 January 1994.

I am a member of the Medical Protection Society.”

The number is given, and Dr Wakefield’s GMC registration number is also given, and that is signed by Dr Wakefield on 1 February 1994.

The second document, document (vii) is at page 39, if you would turn back to that. This is a Medical Protection Society membership certificate, dated 10 November 1993, addressed to Dr Wakefield. It states:

“The benefits of membership are available to the holder …

From: 09/11/93
Until: 08/11/94”

Subject to the Memorandum and Articles of the Society currently in force …

Total Subscription amount …

Membership category: Medical.

Notes: Members usual professional work does not involve diagnosis, treatment, or the prescribing of drugs.”

For (viii) the document is at page 22, and that is the annual registration certificate for Dr Wakefield for a period of 12 months, commencing 12 August 1993.

Returning to the statement, at paragraph 4, Deborah Davies continues:

“I have undertaken an extensive search in the Trust’s files for any other ‘personnel’ documents for Dr Wakefield but have been unable to find any.

We have been asked to provide details about the terms that applied to Dr Wakefield’s honorary consultant contract in relation to his involvement with patients and in particular his ability to (i) have his own clinics/clinical sessions, (ii) diagnose and treatment patients (iii) be involved in the histopathological reporting of tissues from patients (iv) be involved in the management of patients generally.

As can be seen from document (vi) above, Dr Wakefield was appointed as honorary consultant in experimental gastroenterology at the Royal Free Hospital from 1 January 1994. This appointment was linked to his paid employment with the Royal Free Hospital school of Medicine.

Honorary consultant appointments adhere to the Trust’s terms and conditions of service for hospital medical and dental staff and general conditions of service.

Dr Wakefield’s honorary consultant appointment in 1994 was subject to the Royal Free Hampstead NHS Trust terms and conditions as amended from time to time insofar as they related to honorary appointments. The terms and conditions which applied in January 1994 have now been destroyed but they would have been similar to the current terms and conditions.

The Trust’s current terms and conditions do not confirm anything relevant as to the issues we have been asked to address in paragraph 5 of this statement, but relate to other aspects of employment, e.g. equal opportunities, sick leave, etc.

Dr Wakefield’s honorary consultant appointment in 1994 would also have been covered by the standard NHS terms and conditions at the time. These would be similar to the current standard NHS terms and conditions (last updated in June 2005).

The current standard NHS terms and conditions do not confirm anything relevant as to the issues we have been asked to address in paragraph 5 of this statement.

The letter from John Cooper (Chief Executive of the Trust) to Dr Wakefield dated 21 January 1994, and signed by Dr Wakefield dated 1 February 1994, states that ‘No specific clinical sessions are designated under the terms of this honorary appointment’.

This would suggest that Dr Wakefield was not designated any clinical sessions under the terms of his appointment with the Trust. In addition, I can also confirm that Dr Wakefield has never been entered on to the Trust’s PAS system which monitors consultant clinics. This would indicate that Dr Wakefield would not have held his own NHS clinics of which the Trust would be aware.

I have been shown two documents which appear to relate to the terms of Dr Wakefield’s honorary consultant appointment with the Trust. I attach these documents as exhibit DD2.”

Those documents appear in FPT1 at pages 41 and 42, and I will take you to those documents now. The first document is a letter from Dr Peter Harvey to Mr Cooper, the Chief Executive of the Trust, dated 25 November 1993, copied to Professor Zuckerman and Mr Etherington, and it states:

“Dear John,

I am happy to say that the CSC approved an honorary consultant contract, with no clinical sessions, for Mr Andrew Wakefield, the full title being ‘Consultant in Experimental Gastroenterology’. I enclose his job description as tabled at CSC. I will put this through MAC in December.”

That is, as I stated, from Dr Peter Harvey in his capacity as Chairman of the MAC and Associate Medical Director of the Trust.

Page 42 is the document enclosed as the job description for:

“Mr Andrew Wakefield, FRCS, Senior Lecturer in Medicine and Histopathology, and Research Director of the Inflammatory Bowel Disease Study Group, Royal Free Hospital School of Medicine”,

And:

“Honorary Consultant in Experimental Gastroenterology with zero clinical sessions, Royal free Hampstead NHS Trust.”

We have been through this document before, so I do not intend to read it all out but the last few sentences state:

“His research involves the laboratory investigation of resected human tissues, but he will not be involved either in the clinical management of patients with inflammatory bowel disease or the routine histopathological reporting of tissues from these patients. He will not be involved in the outpatient or inpatient management of patients in the Royal Free Hampstead NHS Trust. He will not practise as a Consultant Surgeon, Physician or Gastroenterologist as part of this appointment.”

Then it sets out a daily timetable comprising research and a Gut Club meeting on Tuesday afternoon and a research group meeting on Wednesday morning, and a Grand Round meeting on Wednesday afternoon.

The first sentence of the document states:

“Mr Wakefield is the Research Director of the Inflammatory Bowel Disease Study Group, involved exclusively with laboratory-based research.”

Resuming with the statement of Deborah Davies at paragraph 15:

“The first document is a letter from Dr Peter Harvey, Chairman of the MAC, to Mr J Cooper, Chief Executive of the Trust dated 25 November 1993. Dr Harvey states in that letter that ‘the CSC approved an honorary consultant contract, with no clinical sessions, for Mr Andrew Wakefield, the full title being ‘Consultant in experimental gastroenterology’. I enclose his job description as tabled at CSC. I will put this through the MAC in December’.

The second document appears to be the job description for Dr Wakefield enclosed with the letter dated 25 November and is entitled ‘Honorary consultant in experimental gastroenterology with zero clinical sessions Royal Free Hampstead NHS Trust’.

The letter from Dr Harvey enclosing the job description is addressed to the Chief Executive of the Trust and therefore it should have been filed in the Trust’s personnel file. I have undertaken an extensive search in the Trust’s personnel offices for any other documents relating to Dr Wakefield’s appointment at the Trust but have been unable to find any. It is possible that the letter from Dr Harvey to Mr Cooper was never placed on Dr Wakefield’s personnel file. A copy of the letter was provided to Mr J Ethrington who was then the Medical Personnel Manager and it should have been filed on Dr Wakefield’s personnel file. Mr Ethrington left the Trust over 10 years ago and therefore the Trust cannot assist as to the reason why these documents were not filed on Dr Wakefield’s personnel file.

I can confirm that the Trust has undertaken a search for the Minutes of the Medical Advisory Committee (MAC) and the Consultant Staff Committee (CSC) as referred to in the above letter. The Trust has been unable to locate any Minutes that refer to the appointment of Dr Wakefield. This may be because the records that the Trust has in its possession only go back to 1995 and Dr Wakefield was appointed on an Honorary Consultant appointment in 1993.

I have personally reviewed the Trust’s records and I cannot find any further documents relating to Dr Wakefield’s appointment over the period 1993-1998. It would appear from the letter from Dr Peter Harvey to Mr J Cooper on 25 November 1993…. that Dr Wakefield’s appointment was subject to the terms of the job description.

I understand that my statement may be used in evidence for the purposes of a hearing before the General Medical Council’s Fitness to Practise Panel and for the purposes of any appeal, including any appeal by the Council for the Healthcare Regulatory Excellence. I confirm that I am willing to attend the hearing to give evidence if asked to do so.

I believe the facts stated in this witness statement are true.”

That is signed by Deborah Davies on 23 November 2006.

There is a supplemental statement from Deborah Davies. That supplemental statement deals with an exhibit, which I will now hand in. It is to be placed in FTP1 as pages 370b and c.

(Exhibit C11 circulated)

By way of preamble to this statement, it deals exclusively with details relating to Child 11 in The Lancet. We do not have records for Child 11 in The Lancet and this statement will explain why. So when this statement refers to the patient’s name, I will refer to him as Patient 11.

“Supplemental Statement of Deborah Davies

I, Deborah Davies, will say as follows;

I have already made a statement in connection with this matter dated 23 November 2006.

I attach as exhibit ‘DDD3’ a copy of the PAS registration details from the Royal Free Hospital NHS Trust for [Patient 11].

[Patient 11], a patient from XXX, was seen at the Royal Free Hospital as a private patient. This is reflected in the PAS registration record because he was not given an NHS number, and the hospital number given to this patient is prefaced with ‘B’ (BG3813) indicating that he was seen as a private patient.

The only records the Trust holds for this patient is the PAS registration record.

I understand that my statement may be used in evidence for the purposes of a hearing before the General Medical Council’s Fitness to Practise Panel and for the purposes of any appeal, including any appeal by the Council for the Healthcare Regulatory Excellence. I confirm that I am willing to attend the hearing to give evidence if asked to do so,.

I believe the facts stated in this witness statement are true.”

That is signed by Deborah Davies on 10 July 2007.

Turning to her exhibit at 307b and c, you will see the surname and forename of Patient 11 at the top left-hand side of 370b and you will see the designation “Private 1” on the top right hand side, followed by the BG reference contained in her statement.

On the second page, 370c, you will see the hospital attendance details which appear to be dated 21 February 1997 under Professor Walker-Smith. The date, 21 February 1997, accounts for where it is being placed in FTP1.

Sir, that concludes all the evidence provided by Deborah Davies.

THE CHAIRMAN: Thank you. Ms Smith, are you now going to go to the next witness?

MS SMITH: Sir, as you know, the next witness is Ms Aylwin, from the Legal Services Commission. I am told that she is here but there are some issues that were raised by the defence yesterday which have to be sorted out with her before we actually call her as a witness. I wondered if I could ask you whether you would mind rising. She is the only witness for today. I think we require half an hour but I will send a message.

THE CHAIRMAN: Yes. We will rise for half an hour unless we hear from you otherwise.

(The Panel rose for a short time)

MS SMITH: Sir, may I thank the Panel very much indeed. I know we were very much longer than my estimate, but it was extremely helpful. I am pleased to say that it has enabled Mr Coonan and I to have discussions which are very helpful to the way this evidence is going to be dealt with with this witness. It is time well spent, I do assure you.

THE CHAIRMAN: I was certain that that would have been the case.

MS SMITH: I am now going to call Ms Aylwin.

THE CHAIRMAN: Before you call the next witness, I have been looking at my papers and I believe in the early stages of this hearing you did promise to give us the printed version of the chronology of events at some stage and we still have not received that. I wonder whether it would be possible some time next week if the Panel could be provided with the chronology.

MS SMITH: This was the chronologies for each of the individual patients which I mentioned. What I said was that I would be happy at some point for the Panel to be provided with chronologies of the matters that we have been going through with the GPs and the other witnesses.

I was not planning to produce it quite as soon as this, but that does not mean that it cannot quite easily be done, if it would help you, when we finish the factual evidence.

THE CHAIRMAN: I was thinking of that. There is a little bit of a gap when we will be looking at the transcripts.

MS SMITH: Do you mind leaving it with me. I want to discuss it with the Defence as well.

THE CHAIRMAN: It is just a reminder. I am quite happy to leave it to you.

MS SMITH: It would indeed be helpful to you and we will do something about it.

SARAH AYLWIN, Sworn
Examined by MS SMITH

THE CHAIRMAN: Good morning, Ms Aylwin. May I thank you for coming this morning to give us your evidence in this hearing.

(Introductions by the Chairman)

MS SMITH: Ms Aylwin, we are a long way from each other. Tell me if you cannot hear me clearly, even if you can scarcely see me. Will you tell us, first, your full name and your office address, which I think you would prefer to give.
A It is Sarah Aylwin and I work at the Legal Services Commission, 85, Gray’s Inn Road, London.

Q I think it is right that you are now employed as a legal adviser to the Legal Services Commission, is that correct?
A Yes, that is correct.

Q Did you start working at what was then the Legal Aid Board in January 1998?
A Yes.

Q At that stage, what department were you in?
A The Policy and Legal Department, 85 Gray’s Inn Road, and I was Customer Services Manager.

Q As Customer Services Manager, you were not a legal adviser: is that correct?
A No.

Q You were not qualified as a solicitor?
A That is right.

Q In 2004/2005, was there a rearrangement of the department and did you then become part of the Service Delivery Support Department?
A Yes, Policy and Legal split into different departments and I went with what was called SDS, Service Delivery Support.

Q Since you joined the Corporate and Legal team, which I think was in 2006, you have been working as a solicitor: is that correct?
A That is right.

Q I think you are aware and you have seen a bundle of documents which were disclosed to the General Medical Council by the Legal Services Commission, as they now are, which relate to the MMR group litigation?
A Yes.

Q You are aware that that was a piece of litigation which was originally funded by the predecessor organisation to the Legal Services Commission, which was the Legal Aid Board?
A That is right.

Q I want you to help us just in very general terms, Ms Aylwin, first of all about the legal aid scheme and who administers it. Is it right that the Legal Aid Board was the predecessor to the Legal Services Commission and was the first sort of separate administrative body to administer public money for legal funding?
A Yes, that is right. They took over from the Law Society.

Q In the period with which we are concerned originally – in 1994 to 1996 – who was in charge of individual cases which were the subject of applications for legal aid money?
A We had regional offices round the country and each regional office had solicitors, so they dealt with cases in their region.

Q Was there any kind of special department at that time which was responsible for the very big cases, in particular the multi-party cases?
A No, not in the time you have just said.

Q I think that does exist now, is that correct?
A Yes, that is right. It is called the Special Cases Unit.

Q The MMR litigation was a multi-party action: is that correct?
A Yes.

Q Just so that the Panel understand, the multi-party action is simply an action where a large band of claimants will group together to bring an action against maybe one defendant but very frequently more than one defendant, so there are multi-parties involved?
A Yes. They have a common cause and so it makes sense, instead of having each regional office doing a few there and a few here, if they are all managed by one.

Q You mean that the claimants have a common cause?
A Yes.

Q Going back to those days of the Legal Aid Board and to the regional offices before a special department existed for big claims, when a claim was made for legal aid, who did the Legal Aid Board primarily deal with?
A It would be the solicitor for the claimant.

Q As far as any other parties involved in the litigation (for instance experts) were concerned, who was responsible for dealing with those other parties and any relevant matters that they needed to know?
A It would usually be the solicitor who was acting for the client that would find the expert and deal with the expert on a day-to-day basis.

Q Can you assist us: when a proposal was submitted by a solicitor for legal aid, whether it is an individual claim or a multi-party claim as in this case, what broadly are the principles that the Legal Aid Board lawyer would have to apply to that application?
A There are various tests. The client would have to be financially eligible; the case would have to be a matter that was being heard in England and Wales; there would have to be merit to taking or defending the case; there would have to be good prospects of success; and a client of moderate means, a private client, would take that case forward.

Q So you are saying that the test was that if a private client, in other words someone who is paying for it out of their own pocket, would pursue it, and then the Legal Aid Board would pursue it on behalf of somebody who did not have that money?
A Yes, that is right.

Q But if it was a case where a privately paying client of reasonable means thought ‘well, I am not going to risk this’, then the Legal Aid Board would take the same view?
A Yes.

Q Is there also a costs benefits test?
A I think at that stage it was more about prospects of success. Over the years, it has become much more sophisticated in terms of cost benefit and we have a matrix now.

Q If those tests were satisfied, then what would the position be?
A That the regional office would grant a legal aid certificate.

Q Would that be the same, whether it is an individual action or a multi-party action at that time?
A Yes, at that time.

Q I want to take you, if I may, more specifically to the history of the MMR litigation, which I think was a multi-party action: is that correct?
A Yes, I think from about ’94.

Q Legal aid money funding was granted, is that correct, in relation to a group of parents who were bringing proceedings against drug companies in relation to vaccines, the MMR and the MR vaccine, and whether they might have caused injury to their children?
A Yes, that is right.

Q Did those injuries include autistic spectrum disorders and inflammatory bowel disease?
A Yes.

Q You said you think it was about 1994, and I think that is indeed the first authority to do work funded by the Legal Aid Board that we have in the bundle of documents that the LSC has produced. Could you go in the bundles to the one marked FTP1, page 46. Is that an authority to do contract work, and we see the date down in the right-hand corner of 26 September ’94.
A Yes, that is right. This was a Legal Aid Board document.

Q We see at the top: “Description of [Multi-Party Action]: Measles, Mumps and Rubella” and the name and address of the contract firm. That would be the firm of solicitors?
A Yes, acting for the clients.

Q It says: “Freeth Cartwright Hunt Dickins”, a Nottingham firm?
A Yes.

Q And then underneath we see:

“This letter a) authorises or amends the scope of the work which you may do jointly with Messrs. Dawbarns under the above numbered contract, including any limitations or conditions.”

Was it your understanding that Dawbarns were the other solicitors involved?
A That is right.

Q We see that it authorises the incurring of costs. Then it sets out what they are for.

“1. The arranging and attending upon a conference with Leading Counsel and thereafter obtaining a Preliminary Opinion of Leading Counsel.

2. The creation and maintenance of a database.

3. Correspondence with lawyers and potential medical experts in this and other jurisdictions as necessary.

4. The provision of reports to the Legal Aid Board and the claimants’ solicitors as required by the….. Multi-Party Action Arrangements…..” –

with a limit on how much was to be expended in relation to that first authority. Is that a relatively standard sort of document at the beginning of an action of this kind?
A Yes, it is.

Q Are you aware that in fact later on the funding was extended to cover other matters?
A Yes, it was.

Q If we go on in the same bundle to page 183, we see a document in the same form, “Legal Aid Board Authority to do Contract Work” and this one is dated, on page 184, 22 August ’96. Is that correct?
A Yes.

Q We see this time it is to the other firm of solicitors, Dawbarns, in King’s Lynn. “Authority to do contract work issued on the 26th September 1994” – that is the first document we looked at – “amended as follows”, and this time:

“a) authorises… the scope of the work which you may do jointly with Messrs Freeth, Cartwright Hunt and Dickins…”

We see at 1: “To obtain a preliminary report from Dr Andrew Wakefield pursuant to the Opinion of” the barrister involved and “2. To facilitate the setting up of the clinical and scientific study proposed by Dr A J Wakefield in respect of 10 assisted persons at a maximum cost of £55,000 and to cover the work necessary by the solicitors in so doing”, and a maximum cost which has been redacted in relation to the legal work.

And then,

“The continued correspondence with and interviewing of potential medical
experts ... ”

and maintenance of the database and the provision of reports and, again, a limit put on it. Now, I want to ask you, Ms Aylwin, as far as the solicitors who received proposals of this kind relating to medical experts, do they have any medical qualifications?
A Do you mean the solicitors in the Legal Aid Board offices?

Q Yes.
A No.

Q And what was their role when they are considering medical proposals and documents and the inquiries they might make in relation to them?
A Initially the role is for the applicant's or the client's solicitors to find the expert, decide which one is useful for their case and to get quotes and estimates for the work, and then they would approach our regional office to get the authority to go ahead with that work, and it would not be for the regional office to kind of look behind that; they would just see whether it was a reasonable amount to incur, and either grant the authority to go ahead with that work or not.

Q Yes. And as far as they were concerned who were they relying on in relation to a proposal which involved both the solicitor submitting an application and medical expertise?
A Well, the regional office would be relying on the solicitor to have given them all the right facts and information and obviously the professional expert involved to provide them with, you know, the report that is necessary.

Q You mean the medical expert?
A Yes.

Q And at that time did the Legal Services Commission or the Legal Aid Board, as they were, seek any independent medical view on a research proposal?
A No, not at that time.

Q I want to turn to a related matter which is the actual payments made by the Legal Aid Board, and if you could go, first, please, to page 280 in the bundle you are in, is this a print out from the Legal Services Commission corporate information computer system?
A Yes, it is.

Q And it is dated 4 November 1996, is that right?
A Yes.

Q And we see that it records a payment to Dawbarns, the generic measles and mumps litigation.
A Yes.

Q And we see a Net Amount Requested: 25,000, Allowed: 25,000, is that correct?
A Yes.

Q Now we have already looked, but I want to look again, at some of the correspondence in the Legal Services Commission documents that preceded that payment. If you can go backwards, please, to page 183, that is the document I have just shown you, so that is the Legal Aid contract amended at that stage to facilitate the matters set out which I have read out to you.
A Yes.

Q Then if we go on to page 237, this is a letter to the solicitor, Mr Barr, who was at Dawbarns, as we can see from the top address, from Dr Wakefield, dated 25 September 1996, and it says:

“We are now in a position to start work on this study on behalf of affected children identified by yourselves and approved by the Legal Aid Board. I would be grateful if the initial sum of £25,000 could be transferred to the Royal Free Hospital School of Medicine … for the purposes of initiating and carrying out the initial phase of his analysis. I will write to you once again when the remainder of the funding is required. Naturally, we will keep you appraised of progress and let you have the results and reports as soon as they are complete. Thank you for your help in this matter.”

Then, if we go on to page 268, please, this is a letter from Dawbarns Solicitors dated 23 October 1996 and addressed to Mrs Cowie at the Legal Aid Board. She is the local solicitor dealing with the matter at that time, is that correct?
A Yes, that is correct.

Q And we have indeed heard evidence from her. I am just taking you to the relevant parts.

“Dear Mrs Cowie” – and then down to the bottom three paragraphs – “Dr Wakefield is about ready to get up and running with his testing of the clients and I enclose a copy of his preliminary account to cover the setting up charges.

“I also enclose a CLA28 and I should be grateful if you could arrange for £25,000 to be issued to us so that we can pass it on to him. In view of the substantial size of this sum is there any additional documentation that the Legal Aid Board would like before the money is released to the Royal Free? We have, of course, already emphasised to him that the work must be done in accordance with the pilot study already submitted to you.”

And he says “I shall also be putting in a claim for our own costs update”.

Then if we go on to 279, please, this is a letter dated 4 November 1996 from Ms Cowie to Mr Barr, and it says, in the third sentence down:

“I left a message with your secretary to confirm that your application for the payment on account with respect to Dr Wakefield’s initial sum of £25,000 has been authorised. I understand from Mr Crawford my financial colleague that as it was authorised today, (the 1st November) you should have it in your next payment.”

I am just reminding you of the document we looked at to begin this at page 280, which is the next page, that is the print-out, and we see indeed the same date, 4 November, as the letter, is that correct?
A Yes, that is correct.

(Short break due to technical problem.)

THE CHAIRMAN: Ms Smith?

MS SMITH: (To the witness) The last thing I wanted to ask you about these particular documents relating to this payment is the order, because we have, so you and the Panel understand, the documents in order in chronological bundles for the purposes of this hearing, but I wanted to ask you about the original order of the documents as disclosed by the Legal Services Commission because there were questions asked by Mr Coonan, Dr Wakefield’s representative, of Miss Cowie, and it seems sensible to sort it out. In relation to the order of the documents, if you go back to page 268, that is the letter we have just looked at from Dawbarns to Mrs Cowie saying that Dr Wakefield was ready to do his testing of the clients, and then at 237, which is the letter from Dr Wakefield to Mr Barr, making the same point that he was in a position to start work on the study. When the letters were disclosed to the General Medical Council by the Legal Services Commission, can you confirm the order in which they came in those papers, namely that the letter from Dr Wakefield at page 237 came directly after the letter from Mr Barr to Mrs Cowie at page 268?
A The bundle sent to the GMC was prepared by a colleague of mind so I cannot confirm whether they were in the same order they came out of the original file.

Q I think you discussed it with him, and there is no objection to you telling us this if you can recall what he said about it.
A I cannot remember, I am really sorry. Is it in one of the statements?

MS SMITH: It is. I do not know if there is any objection to my leading on this or not.

MR COONAN: You can lead.

MS SMITH: I thought that would probably be the case. (To the witness) What you said is that you had discussed the matter with the colleague who disclosed the information to the GMC. He did not recall putting the documents into any particular order, chronological or otherwise, and he could not confirm whether the documents were in the same order as they appeared in the original files. Excuse me a moment. (Pause) You said you could confirm, as a result of having discussed it with him, that the letter from Dr Wakefield dated 25 September 1996 appeared directly after the letter from Mr Barr to Mrs Cowie, dated 23 October 1996, in the file of documents which was disclosed to the GMC by the LSC.
Q Yes, that is correct.

Q So, in other words, the two documents I have just taken you to were in that order in the papers when they were originally disclosed.
A Yes, that is correct.

MR COONAN: Would you read the rest of it?

MS SMITH: I read it to begin with but I am very happy to read it again. You said you had discussed this matter with the colleague who had disclosed the information to the GMC and he did not recall putting the documents into any particular order, chronological or otherwise, and cannot confirm whether the documents are in the same order as they were in the original files.
A Yes, that is correct.

Q That means the original files in the Legal Services Commission office, is that correct?
A Yes, the original Newcastle file.

Q But he was able to confirm that when the documents were disclosed to the GMC they were in that order.
A Yes.

Q Now I want to turn to the second payment that I want to ask you about, and that involves going to bundle FTP3, page 1081: is this again a screen printout from the Legal Services Commission Corporation Information Computer system?
A Yes, it is.

Q This time we see at the top right-hand corner the date, 12 February 1999.
A Yes.

Q The solicitors’ name – and I will take you to the document explaining this in a moment – is Hodge Jones & Allen, is that correct?
A Yes, that is correct.

Q We see the total amount requested is £25,000 and the amount allowed is £25,000.
A Yes, that is correct.

Q If we then go to page 1053, is this a letter from the same Mr Barr who was working for Dawbarns and is now at Hodge Jones & Allen?
A Yes, I understand he moved firms at some point.

Q We see:

“Dear Miss Davison,

I am enclosing a copy of Dr Andrew Wakefield’s preliminary report in relation to the MMR vaccines and his investigations.

We have separately put in a request for the second instalment of the fee for the preparation of this report. His report is in summary form only but he has given us a considerable amount of extra detail at our recent Experts’ Conference.”

Then he sets out the various other matters that he wanted to convey at that time.

With that, at page 1054, is a letter dated 26 January 1999, from Dr Wakefield to “Richard”, and that is Mr Barr, whose first name is indeed Richard:

“Dear Richard,

Please find enclosed, the final interim report to the Legal Aid Board, summarising our findings, to date, in children with developmental disorders and their potential relationship to MMR vaccine.

Please would you arrange for the final payment of £25,000 to be paid to the Special Trustees of the Royal Free Hampstead NHS Trust.

We need now to define the parameters for our future investigations, in order to conclude this matter satisfactorily.”

Accompanying that, if we turn over to the next page, is a document which I am not going to go into the substance of but which goes on to page 1080, so in other words to the document before the computer screen printout. Is that an interim report to the Legal Aid Board prepared by Dr Andrew J Wakefield into developmental disorders in children, and measles, mumps rubella, MMR, vaccine?
A Yes, that is right.

Q Ultimately, as we know, and the Panel have already been told, I think it is right that public funding was withdrawn by the Legal Aid Board in relation to this litigation.
A Yes, that is right.

Q I think it is correct that the Legal Services Commission is obliged under the Legal Aid Act 1988 to withdraw funding where a case no longer meets the legal merits tests: cases must have a reasonable prospect of success and the cost of the action must be reasonable compared with the potential damages, those were the matters they had to look at.
A Yes, that is correct.

Q Ultimately, in September 2003, the Legal Services Commission withdrew funding for the MMR litigation on the grounds that the litigation which was seeking to establish a link between MMR and autism or bowel disease did not have any reasonable prospect of success.
A Yes, that is correct.

Q I think that that decision was reached at the time that experts’ reports on both sides had been exchanged.
A Yes.

Q I think it is also right that that decision to withdraw funding by the Legal Services Commission was appealed to a High Court Judge but the appeal was unsuccessful?
A That is correct.

Q In fact that was the first time that medical research had been funded by the Legal Aid Board, and the Legal Aid Board concluded that the Medical Research Council rather than the courts was the appropriate body to investigate the cause of illness.
A Yes, that is correct.

Q Turning now to a completely different matter, which I think we can deal with fairly shortly, in relation to the identity of the litigants, are you able to offer any assistance as to the names of the children in the Legal Services Commission funded pilot study?
A I was asked to check our corporate information system, the computer system, to see if there was any mention of the pilot in the individual certificates, and I could not trace any reference on the system.

Q There is some reference in the correspondence between Dawbarns and the Legal Aid Board that there was a suggestion that the individual Legal Aid certificates of the children involved in the pilot study were to be amended to reflect their involvement, and if I can just take you to the letters which indicate that, if we go to page 187 in FTP1, just the reference in the third paragraph down:

“When the 10 children have been chosen for Dr Wakefield’s study please let me know so that their individual certificates can be properly amended.”

There is that reference, and then if you go on to page 360, the penultimate paragraph on that page:

“As the financial limit on the individual certificates is quite high might I suggest that the individual certificates bear the cost of the individual testing (stay in hospital, MRI scans etc) and then the generic certificate bears the cost of the overall look at the chosen cases, the setting up costs and the global report when it comes through. Does that makes sense?”

So there was that interchange and no really firm conclusion reached.

Are you able to look at individual Legal Aid certificates for specific children and see whether that information is reflected in them?
A It is possible. In this case, I think from memory there were only three paper files still in existence, and there was no mention of the pilot study on those. I can still look on the CIS computer system and I could not see any reference on that.

Q I think it is correct that you were asked to look at the names of particular children, and was it your understanding that they were the children who were ultimately written up in The Lancet paper?
A Yes.

Q In paper form you could find certificates for three of those children, is that right?
A Paper versions, yes.

Q I think that was children whose, if you look at the anonymisation sheet in front of you, names appear next to “child 6, 7 and 8”.
A Yes, that is right.

Q Is that correct?
A Yes.

Q In paper form, what had happened to the others? Do you know? If they ever had certificates, do you know what had happened to them?
A I understand that there were paper files for the others and they were destroyed as part of a destruction project, I think out of Newcastle office.

Q The information contained in the Legal Aid certificates, had that been put into the Legal Services computer system?
A That is where it is created.

Q What information does that give?
A That would normally give the name of the client, the regional office dealing with the matter, a very short summary of the proceedings, what the certificate was for, the name of the solicitor acting and the rough scope and limit of the certificate, so it might say, I do not know, “£12,000 up to and including counsel’s opinion”, something like that.

Q Have you in fact had the opportunity to review both the three paper Legal Aid certificates that you told us about for child 6, 7 and 8?
A Yes, I have.

Q And the information on the computer system relating to the other children who you were asked to look at?
A Yes, that is right.

Q The other children, i.e. the other children who were reported in The Lancet paper?
A Yes.

Q Were you able to find any reference in either of those, either the three paper Legal Aid certificates or the information on the computer system, to inclusion in a pilot study or any other LSC funded study?
A No.

Q Could you find any reference to the costs of individual testing in hospital, stays in hospital or MRI scans or anything like that?
A No, the certificate would not usually give that sort of level of detail. Because of our complex system, if you put “MRI scan on X day” and the hospital, say, cancels that, it means quite a lot of work internally for us because then you have to produce another certificate and re-amend it, so from a solicitors’ point of view, and our point of view, it would be an administrative nightmare.

Q So you could not find it but from what you are saying it was not surprising to you that you could not find it?
A That is correct.

Q I think we should explain for the benefit of the Panel why we are not actually producing copies of either those three paper certificates or the computer printout. Is it the case that you have been advised that that is information that you cannot actually give, except orally?
A Yes, that is right. It is personal data relating to those children and their specific cases.

MS SMITH: Thank you very much, would you wait there.

THE CHAIRMAN: It is now the opportunity for defence counsel to cross-examine you. Mr Coonan represents Dr Wakefield.

Cross-examined by MR COONAN

Q I just want to ask you if you can confirm this, that the Corporate Information System that you have spoken about, that was changed in 1998.
A I think it was RACAS before and CIS came in in 1997/1998, is that what you mean?

Q Yes, but when data, however you technically describe it, was re-cast or reconfigured or changed in some way, data on that system was lost.
A I am not sure. Do you mean … I am not quite sure what you mean: do you mean facts and information that was converted from live cases in the old RACAS system to CIS?

Q Let us deal with that point first: was data lost in respect of that?
A I am not sure.

Q You do not know?
A No. I joined in 1998 so I have very limited information from memory about RACAS.

Q So you are coming in, and in so far as there had been a change, after those changes have occurred?
A Yes, that is right.

Q Was Mr Howgate there when you arrived?
A In 1998?

Q Yes.
A No.

MR COONAN: Thank you.

THE CHAIRMAN: Mr Miller, any cross-examination?

MR MILLER: No, thank you.

THE CHAIRMAN: Mr Hopkins?

MR HOPKINS: No, thank you.

THE CHAIRMAN: Ms Smith, have you got any re-examination?

MS SMITH: No, thank you.

THE CHAIRMAN: Miss Aylwin, as I said earlier, if there are any questions from the Panel I will introduce them by name. Ms Golding is a lay member.

Questioned by THE PANEL

MS GOLDING: There are two firms of solicitors involved with the MMR case, how did they get involved, do you know?
A I am not sure. I would imagine it is because of the amount of people involved in the case, they picked up clients and then, as I was saying initially, individuals can apply for Legal Aid. At some stage it obviously made sense to make this multi-party action and they both had clients that had come to them.

Q You said that there had to be a reasonable case that the case could be won in court.
A Yes.

Q If the medical research was not available why would the Legal Aid Board fund the research before knowing whether there was a good result from the research?
A I am sorry, I do not know. I did not make the original decisions, so I do not know.

Q Is there anything that said why this was something that the Legal Aid Board decided to …
A No. I mean, the tests I talked about earlier were the tests in place at that time.

Q Public funding was withdrawn based on the experts’ opinions.
A Yes.

Q Which experts made the decision, was it the Legal Aid Board experts or medical experts?
A I am not sure.

THE LEGAL ASSESSOR: What was said was that Legal Aid was withdrawn, and that was at the same time that the parties to the proceedings had exchanged their expert reports: that is what was said. So we are talking about the expert witnesses relied on by each side. There comes a stage in civil litigation when the parties have to disclose their reports to each other, and that coincided … It has not been said that that was related to it, and so we cannot explore that, but that coincided with the withdrawal of Legal Aid.

MS GOLDING: How would the Legal Aid certificate play a part in the parents and the solicitors and the hospital? When a Legal Aid certificate is granted to a parent, what does that mean to that parent?
A It is not granted to the parent, it is granted to the solicitor. It is basically a piece of paper that gives the solicitor authority to do work under the Legal Aid Scheme and to get paid. If there is no grant of Legal Aid he is not going to get paid. It is not retrospective, so he needs that before he can do any work, and it only relates to the parent in so far as it will be in relation to their child and they know that the solicitor is getting paid by us.

Q How does the Legal Aid Board know how much has to be paid out?
A What usually happens is that a certificate is given in stages, so you might get something up to and including counsel’s opinion, and then the solicitor will manage their costs by some kind of costs recording system, so if they know that they are getting near the limit then they would come back to us and ask for an amendment to increase the cost, and again they will just keep coming back and asking for amendments as the case proceeds.

MS GOLDING: Thank you.

THE CHAIRMAN: I just have one very small question. Can you open page 46 in the FTP1 bundle? I think you were asked a question on this and I think basically in this letter, (a) authorises or amends the scope of the work which this firm of solicitors may do jointly with Messrs Dawbarns, and (b) authorises the incurring of costs. Now, there is a tick mark in (a) but no tick in (b).
A I do not know why. I am not sure.

Q Does that actually mean that it was only meant and only authorised to do the work but not to incur the costs? That those were not included?
A I am not sure, I am afraid.

Q I have also looked in that connection at page 183. Now, unfortunately the text on this particular sheet is cut out from the page, so I do not know whether you can actually help us in any way. If you cannot --
A I do not remember what our copy looks like, I am afraid.

Q Right. Well, if you do not know then you do not know. Thank you very much. I do not have any further questions but I think counsel may. Ms Smith?

Re-examination by MS SMITH

MS SMITH: Yes. Just arising out of the questions the Chairman has asked, so we are all clear, if you just go back to page 46, we see the tick in (a) and then we see at the bottom of the page,

“Total generic costs incurred under the Contract are not to exceed £12,500, without authority of the Liaison Officer”,

is that correct?
A Yes, that is correct.

Q So is it clear that this authority is an authority to incur costs, whether or not (b) is ticked?
A I would read this as that they could incur costs but not exceeding £12,500, and that they were authorised to work jointly with Dawbarns.

Q Thank you. And just going to the other one, which is page 183, we see in 2, which we have read before, facilitating assisted persons at a maximum cost of £55,000, and then if we go on to the last page, 184, to cover continuing correspondence at a maximum cost of, with the figure redacted by the Legal Services Commission, liaison with leading counsel at a maximum cost of, and total generic costs under the contract not to exceed without the authority of the liaison officer. So would it be your understanding that the same applies? It looks as though there was a tick in (a) again but would you understand this to be an authority actually to incur the costs set out in the details on that certificate?
A Yes, that is correct.

MS SMITH: Thank you. I have no further questions.

THE CHAIRMAN: Thank you. Ms Aylwin, can I thank you for coming this morning. Your evidence is now finished. Thank you again on behalf of this Panel; you are now released.
A Thank you.

(The witness withdrew)

THE CHAIRMAN: Ms Smith?

MS SMITH: Thank you, Sir. As I indicated to you that is the end of the live witnesses for next week. On Monday I am calling Mr Tarhan, who is the finance officer, and I indicated to you what you might find it helpful, if I can respectfully make a suggestion, to read in relation to Mr Tarhan yesterday, and that is quite a significant amount of evidence, in fact, so you may find the break useful. It is Mr Phipps.

THE CHAIRMAN: That was very helpful. There is just one reference you missed out yesterday, and I am sure you can find it. It is Professor Zuckerman's reference.

MS SMITH: It is day 15 and 16.

THE CHAIRMAN: Then can I thank you all. We will obviously do our reading today and tomorrow and we shall see you at 9.30 on Monday morning. We will now adjourn.

(The Panel adjourned until 9.30 am on Monday 3 September 2007)