The Investigation and Prosecution of Health Care Workers who Systematically Harm

Their Patients

by

ALEXANDER ROBERT WALKER FORREST

This dissertation is being submitted in partial fulfilment of the requirements for the degree of the LL.M. of the University of Wales.

December 1992

DECLARATION

I hereby declare that this Dissertation is the result of my own independent investigation and research, except where I have indicated my indebtedness to other sources. This Dissertation has not already been accepted in substance for any Degree and is not being concurrently submitted in candidature for any other Degree.

Signed................................................................

Alexander R W Forrest

Signed................................................................

Supervisor

1

Dedication

To my children, Michael and David, in the hope that,

when in Hospital, they never encounter that "One in a

Million."

2

Acknowledgements

Many people have helped me prepare this dissertation in a variety of ways that have ranged from

providing me with documents to useful discussions. I apologise to anyone I have omitted from the list

below.

John Clark, Home Office Pathologist

Christopher Dorries, HM Coroner, Sheffield

Judith Naylor, Assistant Deputy Coroner , Sheffield

Lynn Locking, my Secretary.

Stephen White, my Supervisor.

Wendy Phillips, Medical Audit Co-ordinator, Royal Hallamshire Hospital.

Brian Donnelly, Special Agent - Examiner, Toxicology Unit, Federal Bureau of Investigation

D R Courtney, Patient Services Manager, Victoria Hospital Blackpool

Tariq Hussain, Assistant Registrar, UKCC.

David J Ferguson, Investigations Officer, NBS, Edinburgh

Bea Yorker, School of Nursing, Atlanta, Georgia.

Audrey Allison, Veterinary Surgeon

John Watt, Assistant Solicitor, Crown Office, Edinburgh.

John W Hicks, Assistant Director, Laboratory Division, Federal Bureau of Investigation.

Jeffrey J Sacks, Centers for Disease Control, Atlanta, Georgia.

Arnold Kemp, Editor Glasgow Herald

Patricia Beard, Librarian, Scottish Daily Record

Linda C Carl, Nursing Consultant, Washington DC

Bruce J Clores Esq, Lawyer, Washington DC

Guri Nesje, Toxicologist, Kriminalpolitsentralen, Oslo

Librarian, Greater Glasgow Health Board.

Martin Sharpe, Journalist, News International.

3

Frontispiece

Beverley Allit, from the "Sun" of 22 November 1991. Her trial is due to take place at Nottingham Crown

Court in early 1993.

4

5

Sooner murder an infant in its cradle

than nurse unacted desires.

Proverbs of Hell

William Blake 1757-1827

6

Summary

Carer Associated Serial Killings (CASK) sequences are rare, occurring at a frequency of

about one per million carers directly working with patients per year. Typically, a nurse, or

other carer, will use their knowledge to induce symptoms in a number of patients. The

motivation often seems to be a variant of the Munchausen by proxy Syndrome, with the

carer involved deriving gratification from involvement in the intense period of clinical

activity that his or her intervention produces. When such sequences occur, they may go

unrecognised for some time and the recognition and investigation of the sequence may be

obstructed by the unwillingness of some staff to accept that one of their colleagues could

be responsible for such events. The number of patients injured or killed in such a series

typically reaches double figures.

The investigation may produce only circumstantial evidence, such as epidemiological

evidence linking an individual to the sequence of unexpected deaths. The scientific

evidence may not unequivocally demonstrate the cause of death particularly if

intravenous potassium has been the method employed. Thus any admission made by the

accused person will be invaluable corroborative evidence. Admissible confessions are

rare in such cases. Knowledge of the psychology of the accused person may inform the

interview process so that the possibility of obtaining an admission is increased.

The investigation of CASK sequences inevitably takes place in a contentious

environment, with staff moral falling to a nadir. Media interest will be intense and is

unlikely to assist the investigation. Management will need to take active steps to maintain

staff moral and to encourage co-operation with the investigators.

Presentation of the evidence in Court will often raise difficult issues relating to the

reliability of the scientific evidence and the admissibility of any statement against interest

that the defendant may have made.

7

8

Introduction

The subject of this dissertation is neither euthanasia, although euthanasia may become an issue in the

type of case I will describe, nor is it the systematic application of physical abuse as a method of control

in Mental Hospitals. 1 It is about a rare, although possibly under reported, phenomenon; the systematic

infliction of injury, usually with drugs and often with a fatal outcome, to a number of patients by a

member of one of the caring professions. The patients are characteristically in particularly vulnerable

groups; the very old, the young before the power of speech has developed and adults in Intensive care

units. These cases, when they come to light, have been aptly described as having the characteristics of

"Big Crime" 2, at least in respect of the resources that have to be devoted to the investigation and

prosecution.

People join the ranks of the Caring Professions for many reasons, not all of which are equally laudable.

For some, and I would count myself in this group, intellectual curiosity about the human body and mind

and their workings is the paramount reason. Others find the relative financial security and high esteem

attractive. Some will enter for altruistic reasons. A few will have more complex reasons, founded in the

darker emotions. Because health care workers are a cross section of society and have no special charisma

of virtue it is inevitable that some of those who work in health care are going to harm those in their care

deliberately and some will do it in a systematic manner. Their motives differ, and will probably span the

spectrum from matters of conscience and conviction, such as euthanasia or ethnic cleansing, to

motivations associated with a more overtly disturbed psychology, where the perpetrator is thrill seeking 3

or even actively psychotic. Examples of the former might include the cases of Dr Nigel Cox 4 and Dr

Jack Kevorkian 5. A good example of the latter type is the case where a Senior House Officer in

Ophthalmic surgery at the Royal Victoria Infirmary in Blackpool who, whilst suffering from a psychotic

illness, killed a number of children in a paediatric ward by cutting their throats. Collective psychosis

1Marchetti A G, McCartney J R. Abuse of persons with mental retardation: Characteristics of the abused, the abusers and the informers. Mental Retardation 1990; 28: 367-371.

2United States -v- Narciso 446 F.Supp.252(1977) at page 264.

3Holzberg B. A nurse who said he just wanted to be a hero. National Law Journal 20 November 1989 p 8.

4 Brahams D. Doctor convicted of attempted murder. Lancet 1992; 340:783-784.

5Gibbs N. Dr Death's suicide machine. Time June 18, 1990; 25:72-73.

9

may be important as in the "ethnic cleansing" cases in Nazi Germany or, for example, in the case of Dr

Laurence E. Schacht, who prepared the mixture of diazepam, cyanide and Kool-Aid that dispatched most

of the victims of the Jonestown massacre 6,7,8. Economic motivations, a euphemism for avarice, may be

important, as when a nursing home proprietor may dispatch residents whose savings are approaching

exhaustion, or as in the case of Mario Jascalevich, an osteopath working as a surgeon in a small New

York private hospital who took to manipulating the post operative care of his colleagues' patients so that

their mortality and morbidity figure were worse than his own, thus enhancing his own practice 9. The

classification of some cases may be a matter of controversy for many years, as in the case of Dr Bodkin

Adams 10, 11.

The numbers of patients involved are not trivial. Typically, between 5 to 10 deaths are associated with

each case and the incidence seems to be of the order of 1 to 2 reported cases per million health care

workers per year. This implies that in Britain, cases may be seen every 3 to 6 years. In the United States,

1 to 2 cases may be seen each year. There may be significant under reporting of cases occurring outside

hospitals. Even when cases occur in a hospital setting, the hospital administration may try to avoid

reporting the matter to those charged with investigating unnatural deaths in a particular jurisdiction. This

may be compounded by a lack of knowledge of the relevant legislation by senior medical staff.

Those health care workers who have been accused of systematically harming their patients come from

most of the groups who regularly have contact with patients as the table below, culled from various

sources, 12 shows. It should be noted that not all of those listed in this table have been tried and some of

those tried and convicted have successfully appealed against conviction on some or all of the charges

they were convicted of.

6Lasaga J I. Death in Jonestown: techniques of political control by a paranoid leader. Suicide & Life Threatening Behaviour 1980; 10(4): 210-213.

7Siegler R. Medical Complicity in the Guyana Tragedy. New England Journal of Medicine 1979; 301: 559.

8Glaser F B. Doctor's role not "pivotal" in Jonestown. New England Journal of Medicine. 1979; 301: 1401.

9Baden M. Unnatural death. New York: Ballantine Books, 1989 pp 157-164.

10Devlin P. Easing the Passing - The trial of Dr John Bodkin Adams. 1985 London: Bodley Head.

11Hallworth R, Williams M. Where there's a Will...... The sensational Life of Dr John Bodkin Adams. Exeter: Capstan Press, 1983.

12 Two of the sources are: Newton M. Serial Slaughter. Port Townsend Wa.: Loompanic Unlimited, 1992and Newton M. Hunting Humans - An encyclopaedia of Modern Serial Killers. Port Townsend Wa.: Loompanic Unlimited, 1990.

10

Allit, Beverley Nurse United KingdomAngelo, Richard Nurse United StatesArcherd, William D Aide United StatesBodkin Adams, John Physician United KingdomBolber, Morris Physician United StatesBolding, Jane Nurse United StatesBombeek, Cecile Nurse BelgiumClark, Roland Physician United StatesDiaz, Robert Nurse United StatesEmory, Joseph Osteopath United StatesFelner, Jeffrey Aide United StatesGreen, Anne Nurse United StatesHansson, Anders Aide SwedenHarm, Teet Pathologist SwedenHarvey, Donald Aide United StatesJascalevich, Mario Osteopath United StatesJones, Genine Nurse United StatesJoyner, Anthony Maintenance United StatesKevorkian, Jack Pathologist United StatesKurle, Linda Nurse United StatesMacGregor, John Physician United StatesMcTavish, Jessie Nurse ScotlandNarciso, Filipina Nurse United StatesNelles, Susan Nurse TorontoNesset, Arnfinn Administrator NorwayNuss, Ralph PSW United StatesPerez, Leonora Nurse United StatesPetiot, Marcel Physician FranceProtopapas, Tony Dentist United StatesRachals, Terri Nurse United StatesRobaczynski, Mary Nurse United StatesRoeder, Michaela Nurse AustriaRudloff, Fitz Nurse GermanySchacht, Laurence E. Physician GuyanaShook, Anthony Nurse United StatesSwango, Michael Physician United StatesWaddingham, Dorothea Home Owner U K

Nurses of one type or another constitute about 45% of this list. The predominance of nurses in this list

may reflect their numerical predomination in the caring professions and their intimate contact with

patients which gives them the opportunity to do harm, at least in the lower ranks of the profession. As I

will discuss, at least some of the nurses who systematically harm their patients do so as a variant of the

Munchausen by Proxy Syndrome. There is at least some evidence that nursing is a profession that some

of those with a propensity to develop this syndrome find an attractive one to enter 13.

13The Munchausen Syndrome is a condition where an individual simulates illness, often allowing himself to be subjected to a variety of invasive investigations or even operative proceedures. It was first described by Richard Asher. (Asher R. Munchausen's Syndrome. Lancet 1951; i: 339-341). In Munchausen's by proxy, an individual simulates disease in another, usually a child. (Meadow R. Munchausen Syndrome by Proxy. British Medical Journal 1989; 229: 248-250).

11

The vast majority of cases that come to light, where carers are alleged to have harmed their patients are

cases occurring in hospitals or other residential institutions. This may simply reflect a detection or

reporting bias, and much "mercy killing" that goes on in the community may go undetected. For

example, one of the characters in a recent Simon Raven 14 novel cites one of the advantages of home

confinement as being that if the mother is delivered of a severely handicapped child then those in

attendance on it may expeditiously dispatch it rather than subjecting it to the full gamut of modern

medicine with the consequence that it might survive, horribly handicapped. There is evidence that much

systematic harming of patients in residential care institutions may go unreported 15.

Many difficulties surround the investigation and prosecution of these cases. Typically, there is a long

period of suspicion, with rumours and counter rumours. The professions retreat behind their barricades

and staff morale in the unit concerned falls to a nadir. Issues of feminist politics and the complex politics

of the relationship between doctors and nurses may be raised. International politics may become an issue

where the individual under investigation is a "guest worker", as for example was the case of two

Philippina nurses in the United States who were found guilty, the verdict being reversed on appeal, of

murdering patients in a Veterans Administration Hospital 16. Managers worry about the employment law

consequences of suspending the employee at whom the finger may be pointed and about their civil law

liability and the effect the scandal may have on the future of their unit. Press interest is intense and whilst

the reporting may be accurate, the headlines may do little to engender an atmosphere in which the

investigation can proceed 17. The police investigation is usually prolonged and may be characterised by

difficult interviews, difficulties faced by the investigating officers in coming to grips with complex issues

of epidemiology and toxicology and the problems of managing an enormous mass of documents,

followed eventually by an arrest. After the arrest there may be pre-trial issues to be decided in court. The

trial can degenerate into a trial of experts as the scientific evidence presented is often at the edge of

scientific knowledge. In some cases the defence may have difficulty in getting good expert advice as all

the expertise has been garnered by the prosecution during the investigation. The admissibility of any

statement made by the defendant is often an issue, as may be the admissibility of evidence relating to

deaths or assaults not specified in the indictment. Often it will be part of the defence strategy to look not

just to the result of the trial but to lay traps for the Court and prosecution that lead to appealable errors.

14 Raven S. "In the Image of God". Grafton Books , 1991 at page 17.

15Corey TS, Weakley-Jones B, Nichols GRH & Theuer HH. Unnatural deaths in nursing home patients. Journal of Forensic Sciences 1992;37: 222-227.

16 See United States -v- Narciso 446 F.Supp.252(1977), cited above.

17 See, for example, the frontispiece (page 5).

12

The trial may be conducted in an atmosphere of intense public interest with politicians and leader writers

pontificating about the "Right to Die". If a conviction is secured it may well be overturned on appeal.

In the body of this dissertation I will describe 4 cases, from different jurisdictions, in some detail,

outlining the difficulties which were encountered during the course of the investigation. I will then

discuss some of the legal problems that are encountered, in particular, the difficulties of Expert evidence

in general and the evidential difficulties of presenting statistical and epidemiological evidence in Court,

the difficulties that may be encountered in presenting evidence obtained by interview of the suspect and

the problem of "Similar Fact" evidence. Finally, I will make some suggestions about the actions that can

be taken to prevent such episodes, to detect them at an early stage in the epidemic period if prevention

should fail and to secure a conviction if the suspect is found fit to face trial.

13

Chapter 1

Regina -v- Susan Nelles 18

In the early 1980's Toronto Children's Hospital was a 700 bed Teaching Hospital with both secondary and

tertiary referral functions. As might be expected, it had a busy cardiology unit. As the workload

increased, the cardiology service was moved from Ward 5A to two wards, 4A and 4B, that shared a

single nursing station and certain other common facilities, such as treatment rooms. The number of beds

and cots increased from 38 to 42. Most of the medical staff were cardiology fellows in training who

spent 4 to 6 weeks on the ward. The nurses worked 12 hour shifts in teams. One team was assigned to

each ward, but it was not uncommon for nurses in the team assigned to ward 4A to assist nurses in the

team assigned to ward 4B and vice versa. Ancillary personnel, such as phlebotomists, physiotherapists

and ward clerks also worked on the wards but were not usually present on the ward after 10.00 p.m.

There was not a ward pharmacy service such as is now common in many British hospitals. (See also

Chapter 2 in which the case of Jessie McTavish is described). Medicine doses were prepared on the

wards by nurses. Intravenous injections, except for antibiotics were given by medical staff. Other

medicines were given by nursing staff. Digoxin would be given either at about 9.00 p.m. or between 5.30

am and 9.00 am. It was not subject to any special controls.

On 30 June 1980 Laura Woodcock, an 18 day old baby, died on ward 4B. Between July 1980 and the

end of March 1981 32 babies and 3 older children died on the cardiology unit. The relative risk of death

during this period, compared to the previous 4½ years was 3.9. That is, a child admitted to the

cardiology unit during that period had nearly a 4 times greater chance of dying than he or she would have

had had they been admitted to the unit in the preceding 4½ years. No comparable change in the death

rate was seen in other parts of the hospital. The agonal phase of the illness of those children who died in

18 The details of this case given here have been derived from two main sources: The scientific report of the investigation (Buehler JW, Smith LF, Wallace EM, Heath CW, Kusiak R & Herndon JL. Unexplained deaths in a Children's Hospital: an epidemiological assessment. New England Journal of Medicine 1985; 313: 211-216 and Rothman K J. Sleuthing in Hospitals. New England Journal of Medicine 1985; 313: 258- 259) and the report of the Royal Commission set up by the Lieutenant Governor of Ontario (Report of the Royal Commission of Enquiry into Certain Deaths at the Hospital for Sick Children and Related Matters. The Hon Mr Justice Samuel G M Grange , Supreme Court of Ontario, Commisioner. Ontario. Ministry of the Attorney General. 1984 ) The Commission report gives considerable detail of, for example Ms Nelles interogations. I have also used some data from contemporary print media accounts obtained from the DIALOG data base "MAGA2" - which covers Canadian current affairs.

14

the epidemic period tended to be between midnight and 6.00 am. During that period the children who

died were much more likely to die on the ward than in the Intensive Care Unit and the majority of the

children who died, died on ward 4A rather than ward 4B. Much of this information only became

available as a result of an epidemiological study carried out after the epidemic had ceased. However by

early 1981 investigations carried out on behalf of the Coroner had revealed unusually high levels of

Digoxin in samples which had been obtained either after death or just before death in three of the

children who had died on the cardiology unit. A very high Digoxin concentration was then found in

samples obtained from a fourth child who had died.

On Sunday 22 March 1981 the night shift of nurses who were due to start work on ward 4A were all

relieved of duty. This shift was known as the "Trayner Shift", taking the name of its head nurse, Ms

Phyllis Trayner. One of the nurses on this shift, Susan Nelles, had a room mate who was a 3rd year law

student. This student suggested to Susan Nelles that she ought to consult a lawyer and provided her with

the name of two lawyers who had some interest in nursing law. They were not criminal lawyers. Ms

Nelles put a piece of paper bearing the names of these two lawyers into her house coat pocket.

Circumstantial evidence available at the time strongly implicated Susan Nelles and the investigating

Police Officers arrested her on the 27 March 1991. They were somewhat taken aback to find that she had

the telephone number of two different lawyers in her housecoat pocket. She was taken to a Police Station

and eventually managed to contact one of those lawyers. This lawyer did not have a criminal practice

and there was a further delay whilst she (the lawyer) contacted a lawyer with a criminal law practice.

The two lawyers then went to the Police Station where Ms Nelles was being held and, before Ms Nelles

first interview, the lawyer with a criminal law practice met with her alone and gave her certain advice.

This advice was to the effect that she should not say anything that she thought could be incriminating but

that if the Police thought that she was not co-operating with them then they "might be hard on her". Ms

Nelles, who was a slim woman of less than 5 feet in height, interpreted this to mean that she might be

subject to physical violence. The lawyer then departed and Ms Nelles was interviewed by two Police

Officers. Both at the time of her arrest and before the interview she was cautioned using a form of words

which made it clear that she did not have to say anything but that anything which she did say would be

noted and could be given in evidence against her. She did not appear to co-operate with the Police

Officers during her initial interview. During her interview the Police Officers were puzzled that she

alternated between talking freely about aspects of her work and refusing to answer questions about quite

trivial matters. On the basis of the evidence that they had and the information they had been given about

the effects of Digoxin, quite irrespective of the information given by Ms Nelles in her interview, they

charged her with four murders shortly after the completion of the interviews.

15

The investigation continued and she was remanded in Custody.

On 11 January 1982 a Preliminary Enquiry was opened before a Judge. This hearing appears to have

been very much like an "old-style" Committal hearing before Magistrates in the English legal system 19.

All the evidence against Ms Nelles was reviewed in considerable detail. After 45 days of hearings the

Presiding Judge dismissed the case against her saying "There is insufficient evidence to go to a Jury".

The detailed reasons given by the Presiding Judge at the Preliminary Enquiry for dismissing Ms Nelles

were:

1) All the evidence against her was circumstantial 20.

2) She had no exclusive opportunity for administering Digoxin to three of the children named in the

charges against her and no opportunity at all for one of the children named in the charges against her.

3) The time of administration of the fatal doses of Digoxin was not established.

4) If one person was responsible for all of the killings it could not be Ms Nelles because she had no

opportunity to kill two of the infants

5) The conduct of Ms Nelles was not such as to give reasonable grounds of suspicion.

6) Her conduct at her first interview was merely a reflection of her right to silence which in Canadian

law is in no way presumptive of guilt.

At that stage Ms Nelles legal fees amounted to some 200,000 dollars. Ms Nelles reaction to the

dismissal of the charges against her was to sue the Crown, the Attorney General of Toronto and the

19It was only after the passage of the Criminal Justice Act 1967 (s 2), re-enacted in the Magistrates' Courts Act 1980 s102, that "paper"committals from the Magistrates' Courts became possible in England and Wales. One of the criticisms of this reform has been that, despite its virtues, it has deprived younger police officers and expert witnesses of the opportunity to give evidence in a relatively less threatening environment than the Crown Court.

20As indeed it would have to be in the absences of a confession or a "smoking syringe".

16

Police Officers in the case. The action against the Crown and the Attorney General was fairly rapidly

struck out, although Ms Nelles appealed against that decision.

In September 1982 an epidemiological investigation was initiated in which the Centre for Disease

Control (CDC) from Atlanta was involved 21. Some of their findings have already been outlined.

However they also looked at the work schedules of doctors and nurses. As might be expected it was

easier to establish when a particular nurse had been on duty than it was to establish when a particular

doctor had been on duty. Accurate pay roll log sheets for the nurses had been kept giving their dates and

times of duty. None of the Cardiology Fellows (junior doctors in training) had been on duty throughout

the epidemic period. This was thought to exculpate them. Most of the attention was focused on the team

of nurses who had been suspended from duty on 22 March 1981. This team of nurses was known as the

Trayner Team taking the name of their head Nurse. Since the nurses in this team were not necessarily all

on duty at a particular time it was possible to do further statistical analyses. The relative risk of a

"terminal deterioration" in patients who died during the epidemic taking place whilst a particular nurse

was on duty was calculated. for nurse A the relative risk was 64.6, for nurse B 8.2, for nurse C 6.9 and for

nurse D 5.4. Susan Nelles was nurse B. It transpired that one of the children she was accused of

murdering had not died at a time when she was on duty. No criminal proceedings have been taken

against nurse A.

As a result of the considerable public concern surrounding the Police investigation of this case and the

subsequent Prosecution of Ms Nelles a Royal Commission was set up by order in Counsel of the

Lieutenant -Governor of Ontario to enquire into "certain deaths at the Hospital for Sick Children and

related matters" 22. Only one Commissioner, Mr Justice Grange was appointed and the enquiry came to

be known as the "Grange Commission". The remit of the Commission was initially to establish "how and

by what means the children died" and "circumstances surrounding the investigation, institution and

prosecution of charges". The first part of this remit is very reminiscent of the function of a Coroner, that

is, inter alia, to investigate how, where and when a person came to their death 23.

Before the hearing started, a further Order in Council amended the Commission's remit. The amendment

included the phrase: " The Commissioner may receive evidence and submissions and comment fully on

21See Buehler JW et al, op cit.

22This was set up under the appropriate Ontario legislation: Public Enquiries Act 1980 RSO c.411, s6.

23 Coroners Act 1988 s 5. Coroners Rules 1984 Rule 36 "The proceeding and evidence at an inquest shall be directed solely to ascertaining the following matters, namely - (a) who thedeceased was; (b) how, where and when the deceased came by his death ; (c)The particulars .......required by the Registration Acts to be registered concerning the death.

17

the conduct of any person... provided that such comment does not express any conclusion in law

regarding Criminal or Civil responsibility" Again this is reminiscent of the Coroner's Rules currently in

force England and Wales 24.

Mr Justice Grange sought a declaration ("Order")from the Divisional Court on 10 January 1984, asking

for the Court's opinion as to whether he would be within his remit were he to express an opinion in his

report that the "death of any particular person was as a result the action of any (named) person or

persons". The Divisional Court granted an order the effect of which would have been to allow him to

name any person whose action might have lead to the death of one of the children who died during the

epidemic period.

However, on 20 March 1983 the Supreme Court of Toronto heard an appeal against this decision by Ms

Nelles, Ms Trayner, the Registered Nurses Association of Toronto and 39 Registered Nurses employed at

the Hospital for Sick Children 25. During the hearing the Coroners Act 26 then in force in Ontario was

cited. The Supreme Court granted the Appeal. As a result, the Grange Report does not "name names"

and the identity of Nurse A has not been disclosed to the public.

Mr Justice Grange found that of the 33 deaths in the epidemic 8 were certainly due to Digoxin toxicity

and that he was either highly suspicious or suspicious that a total of 15 others were due to Digoxin

toxicity. In his conclusions, he stated:

"I cannot find that any one of the deaths which I conclude or believe or suspect were

caused by Digoxin toxicity was the result of accident or medication error".

Whilst he totally agreed with the decision of the Judge hearing the Preliminary Enquiry to discharge Ms

Nelles he found that the Police Officers in the case had been perfectly correct to arrest her on the basis of

the information they had at the time. He also found no evidence that their enquiry had been seriously

flawed. In his conclusions he suggested that Ms Nelles should receive compensation equivalent to her

legal fees and out of pocket expenses and that a condition of this ex gratia payment should be the striking

24Coroners Rules 1984. Rule 42 "No verdict shall be framed in such a way as to appear to determine any question of- (a) criminal liability on the part of a named person or (b) civil liability.

25 Susan Nelles and others -v- Mr Justice Grange Commisioner. Appeals Division, Supreme Court of Ontario , 1984 46 OR (2d) 210

26Coroners Act 1980 RSO.

18

out of her Civil Case against the Toronto Police. However, he did not recommend any further

compensation.

One of the scientific issues that received meticulous scrutiny during the Grange Commission hearings

was the difficulties of measuring serum Digoxin in small infants. The assays available for Digoxin in

serum in the early 1980s were less than perfect. Most of these assays could give false positive results,

reporting levels of Digoxin of up to 1.4 micrograms per litre in adults in renal failure and in premature

infants, although these patients received no digoxin. 27 The interfering substances are known as Digoxin

Like Immuno Reactive Substances (DLIRS). Whilst these interfering substances can cause problems

even with currently available assays when dealing with the concentrations of Digoxin found during the

course of normal medical treatment they would not normally cause problems of interpretation in cases of

Digoxin overdose. For example in the last child to die in the epidemic the serum Digoxin concentration

in a sample taken just before death was 72 micrograms per litre. This is an extremely high figure.

Media interest in Ms Nelles continued after the publication of the Grange Commission Report. The

Toronto Star reported her marriage on 30 December 1984 and the Alberta Record under the headline

"Desperately Seeking Susan" described her attempts to avoid the media during a visit to Edmonton in

April 1985. In 1989 the Toronto Star ran a feature on the case under the headline "The Sad Saga of

Susan Nelles". In 1989 the Montreal Gazette reported that the Supreme Court had heard her appeal

against the striking out of her Civil Suit against the Attorney General of Toronto and had ruled that her

suit could proceed. In March 1991 the Halifax Chronicle Herald reported that she was still "haunted" by

the accusations of murder that had been made against her.

27Valdes R, Graves SW, Brown BA et al. Endogenous substance in newborn infants causing false positive digoxin measurements. J Pediatr 1983; 102: 947-950.

19

Chapter 2

Her Majesty' s Advocate -v- McTavish 28

At the end of the nineteenth century, as the City of Glasgow grew, the Corporation erected a number of

large hospitals. One of these was Ruchill Hospital. Construction of the hospital began in 1895 on a 36

acre site. Initially 440 beds were available on the hospital's completion in 1900. These beds were used

for the care of patients with infectious diseases. An additional 270 beds were provided in an extension

built towards the end of World War 1. These beds were used for the management of patients with

tuberculosis.29

After World War 2, as the incidence of infectious diseases fell, initially the treatment of tuberculosis

became relatively more important. With the coming of the National Health Service in 1948, the hospital

was no longer the property of Glasgow Corporation but was taken over by the Secretary of State for

Scotland. Smaller infectious diseases units closed and Ruchill acquired a tertiary referral function for

other health districts. Despite this, as the incidence of infectious diseases and tuberculosis continued to

fall so the clinical workload of the hospital fell. Thus it was decided to develop other clinical services at

Ruchill hospital. Initially a "young chronic sick" unit was set up, mainly dealing with the young people

suffering from catastrophic brain damage of one sort or another. By 1965 an additional five wards had

been converted to accommodate geriatric patients. These patients were not usually acutely ill, but had

become infirm and could no longer be cared for in the community. Other developments on the site, by

1973, included the setting up of small general medical and general surgical units, a virology laboratory

providing a supra-regional service and the university departments of infectious diseases and

epidemiology and preventive medicine.

Although the Ruchill hospital site was attractive with open views towards the Campsie Hills it was not

well suited, in many ways, to its new function. Whilst ward blocks set out as widely spaced, single story,

28Some documents and news reports give Ms McTavish's name as MacTavish. I have standardised on McTavish except when using direct quotations.

29Much of the information in this chapter is dervived from contemporary newspaper accounts, in particular, the Scottish Daily Record , the transcript of Ms McTavish's trial and the report of the GGHB investigation into the management of Ruchill Hospital:- "Stevenson S (Chairman). Ruchill Hospital - A Report to the Greater Glasgow Health Board. 1975"

20

pavilions in the Nightingale influenced design of the late nineteenth century might well have been

appropriate for the management of patients with infectious diseases, such wards are not particularly

satisfactory for the care of the chronic sick. Also widely spaced single story pavilions make effective

managerial control at night difficult. From personal experience, I can also say that, in the middle of a

Scottish winter's night, junior medical staff need to be given very good reasons to visit the more distant

wards on such a site.

In the events that are to be described it will be seen that the physical problems of exerting effective

managerial control were compounded by a weak managerial structure. On the nursing side, at one time

Ruchill Hospital had what might be thought to be the benefit of having a matron in overall control of

nursing services. However, by 1973 the effect of the Salmon reforms had been that no one nurse had

overall control of the nursing staff at Ruchill hospital 30. Various principal nursing officers had some

responsibility for parts of the nursing activities at Ruchill hospital but they would be based at other sites

in the city and have other responsibilities elsewhere. At night a single nursing officer, together with ward

sisters would cover the whole of the hospital and would be faced with the physical difficulties already

alluded to. One effect of this was to emphasise the isolation of the geriatric unit. Staff at ward level no

longer had a single person to whom they could bring problems. The matron had been replaced by a

complex organisation in which several individuals had areas of overlapping responsibility and where

competition rather than co-operation appears to have been not unknown. Many ward staff felt that

support for their clinical activities was weak and that complaints were not dealt with. In particular

complaints about certain junior medical staff who appeared to be disinclined to attend the ward when

nursing staff asked them to do so appeared not to have been followed up, at least as perceived by the

ward nursing staff. This is understandable if one considers the case of Dr Ram Saxena who was

apparently counselled and eventually dismissed from his post in the geriatric unit after his performance

failed to improve. This was not communicated to the ward staff and he continued to be employed on a

locum basis elsewhere in the hospital. The duties of his locum post included providing on-call cover for

the geriatric unit. Whilst staff meetings were, on paper, supposed to be held at regular intervals to

facilitate communication between ward staff and nursing administration very often these meetings were

cancelled due to lack of staff 31.

30M.O.H. Report of the Committee on Senior Nursing Staffing Structure. London: HMSO, 1965. A document usually known as the "Salmon Report".

31These reforms of nursing management were not popular with senior medical staff nationally. See, for example, Anon. Practicalities of Nursing [Editorial]. British Medical Journal 1971;3:545-546

21

Medical staffing and administration, in the geriatric unit, appears to have been equally unsatisfactory.

Whilst the medical staffing and consultant cover in the long established chest and infectious diseases

wards was satisfactory, many of the consultants nominally covering the geriatric wards at Ruchill had

their main duties elsewhere. As has been implied above the cover from junior medical staff was less than

adequate and junior doctors were often reluctant to attend wards at night to write prescriptions or even to

certify the fact of death before a body was removed to the hospital mortuary. Evidence was given at Ms

McTavish's trial that certain junior doctors did not execute their duties in law in the examination of

bodies before issuing cremation Form B or Form C 32. Telephone prescription of drugs, including

controlled drugs, appears to have been a common practice. The exchange or borrowing of drugs between

wards, often without documentation or any sort of audit trail, was common. There was no ward

pharmacy service where a pharmacist visits the ward to check on prescriptions and medicine stocks.

It is against this background of a less than optimal physical environment and definitely sub optimal

administrative and staffing arrangements that Miss Jessie McTavish worked. In 1973, she was 33 years

of age. She had originally trained at Ruchill hospital for the fever certificate. She had then gone on to

complete general nurse training at Stobhill hospital in Glasgow. Then she trained as a midwife. She then

returned to Ruchill hospital as a Staff nurse. She was promoted to Sister in 1965. She went to Canada in

1967 and returned as a Sister at Ruchill hospital in 1969. When she took up her post at Ruchill in 1969

no references were sought although a medical certificate stating that she was fit to take up the duties of a

nursing sister was provided. Despite this, there was some evidence that she had undergone psychiatric

treatment prior to her appointment in 1969. Between 1969 and 1973 staff records might have been

regarded as showing some slight evidence of deviancy but not such as would give rise to any great

suspicions. She was known to be easily upset and she was anxious to please but it was common ground

to most colleagues that she was kind to patients. She had, on one occasion, ordered flowers for all the

patients in her ward and, on another occasion, had arranged for a bus trip for them without obtaining

proper authority. One might suspect that, given the administration structure outlined above, obtaining

proper authority for such an excursion would not have been a simple matter.

On 12 May 1973 BBC Television showed an episode of the American Court Series, "A Man Called

Ironside" in which a nurse murdered elderly patients in her care at a geriatric nursing home at the request

of patient's relatives in return for money. Whilst the method used was lethal injection, no mention of

insulin, or any other drug by name, was made. Ms McTavish was later said to have discussed the content

32Cremation Act 1902. This Act applies to both Scotland and England and Wales.

22

of this programme with a number of colleagues. In the course of those discussions, the use of insulin as

an untraceable agent for homicide was mentioned.

In late June 1973 there was an unusual run of 5 deaths in Ms McTavish's ward. The deaths were in

patients, who although elderly, were not particularly thought to be at risk of dying at the time they

expired. This was noted by a number of the hospital staff, although not at once by the consultant medical

staff, and rumours began to circulate.

On Sunday 1 July 1973 an elderly patient, Mrs Elizabeth Lyon, died in Ms McTavish's ward at Ruchill

hospital. On 2 July, the consultant on the ward did a ward round. He was concerned at the number of his

patients who had died in recent weeks and one suspects that the round might have been conducted with

some particular degree of attention to detail. During the course of the round he talked at length to one

patient who, he later said in evidence, was plainly terrified in Ms McTavish's presence and who described

being given injections by Ms McTavish after which she "felt awful". Ms McTavish intimated that these

were injections of distilled water. The consultant then went to the mortuary and examined Mrs Lyon's

body on which he found at least one injection mark. No injections were recorded as having been given to

Mrs Lyon in the medical or nursing records. From the mortuary, he appears to have gone to the hospital

administrators and after some discussion informed the Procurator Fiscal. 33 Ms McTavish was summoned

to the hospital administrator's office, where, instead of being offered the promotion she said in court was

the reason why she thought she had been summoned there, she was suspended from duty. The Police

commenced their investigation on behalf of the Procurator Fiscal at lunch time on Monday 2 July and Ms

McTavish was taken into Custody shortly before midnight on that day. On 3 July she appeared at

Glasgow Sheriff Court where she was charged with injecting drugs which were not medically prescribed

into three elderly people of whom one, Mrs Lyon, had died.

In 1973 the technology for assaying insulin was not nearly as well developed as it now is. Although

some 16 years had passed since Currie's classical investigation of the Bradford insulin murder 34 and 13

years had passed since Yalow and Pearson's Noble Prize winning paper on the immunoassay of insulin, 35

33 The administration of criminal justice in Scotland is controlled by the Crown Office in the name of the Lord Advocate. In each Sheriffdom a Procurator Fiscal is appointed, who is responsible to the Lord Advocate through the Crown Office. The Fiscal is responsible for the investigation and prosecution of crime. The police collect evidence and conduct their investigation with the object of preparing a report for the Fiscal who takes the decision to whether to prosecute or not, excpet in serious cases such as murder or rape which are reported by the Fiscal to the Crown Office where one of the Advocates Depute (members of the Scottish Bar appointed by the Lord Advocate to assist him) will make the decision to prosecute and will draft the indictment. In Scotland members of the Bar are known as Advocates.

34Birkinshaw VJ, Curry AS et al. Investigations in a Case of Murder by Insulin Poisoning. British Medical Journal 1958; ii:463-468.

35Yalow R S, Berson SA. Immunoassay of endogenous insulin in man. Journal of Clinical Investigation 1960; 39:1157-1175.

23

the measurement of insulin in material collected at post mortem was a relatively difficult procedure

fraught with enough potential errors to give considerable opportunity to experts from the other side in any

Adversial Court system. The Crown Office rapidly became aware it would not be possible to complete

the scientific side of the investigation in the limited time available in Scots Law. Section 43 of the

Criminal Procedure (Scotland) Act, 1887, set out a period of 110 days after Committal for trial during

which the accused can be held in Custody without his trial being brought to conclusion 36. However,

Section 43 also stated:

"It shall be competent for the High Court of Justiciary in any case brought before it

under this section, upon it being shown to the satisfaction of the Court that the trial of the

person accused ought to be suffer to proceed after a lapse of 110 days as aforesaid, when

the delay in Prosecuting to verdict is due to the illness or absence of certain persons or

any other sufficient cause for which the Prosecutor is not responsible, to order the person

accused, not withstanding the expiry of the said period of 110 days, to be kept in Custody

with a view to trial for such period or periods as to the said Court may seem just."

The Lord Advocate petitioned the High Court in Edinburgh seeking an order to extend the 110 day period

37. He stated that the purpose of the application was so that the Crown could determine whether or not the

substances which Jessie McTavish had been charged with administering to patients without prescription

might be identified and it thus established whether or not those substances could have caused or

contributed to the death of Mrs Lyon. On the basis of those findings the Crown would decide whether

another charge (for example, murder,) should be brought against Ms McTavish. The Lord Advocate went

on to say that Ms McTavish had been examined, during the period of her detention, by two psychiatrists

who had found her sane and fit to plead. Both of those psychiatrists felt that there was a serious risk that

Ms McTavish might harm herself if she were to be released from Custody and one of them felt that the

risk of her causing injuries to others could not be excluded. However, her condition was not such as to

warrant detention for treatment 38. Under the circumstances, since Section 43 of the Criminal Procedure

(Scotland) Act 1887 stated that when the trial of an accused person detained in Custody is not concluded

within 110 days of the date of his committal he would at that time be "set at liberty and declared for ever

free from all questions or process of the crime for which he was committed", the Crown were, not

36Re-enacted in the Criminal Proceedure (Scotland) Act 1975 s. 101

37HMA -v-McTavish. 1974 SLR 246-247 and. HMA -v- Mctavish 1975 JC 19-23.

38Mental Health Act (Scotland) 1960.

24

unnaturally, fairly anxious that the High Court should grant their petition to extend the period of time in

which Jessie McTavish was held in Custody.

The counter argument presented by Jessie McTavish's Advocate was that the delay in obtaining the

scientific evidence was a delay for which the Crown was wholly responsible. In any case, on the basis of

the evidence available to the Crown they could proceed with the charges currently laid against her. The

Scots Law Authorities cited suggested that the rule was limited to procedural matters where the

responsibility for the delay did not lie with Prosecution. Further, that the question of Ms McTavish's

mental health was irrelevant. In giving judgement, the Lord Justice-Clerk did not accept the Crown's

arguments. He said "....I am not satisfied that the Crown has shown that despite all due expedition it has

not been possible to get the results of these tests to enable the prosecution to proceed to its conclusion

within the requisite 110 days period." and "... that the purpose of the extension..... is to see whether these

further tests might disclose the possibility of a more serious charge being preferred against her." He also

said " we are told ....that in the present case it would be possible to bring to trial within 110 days a

charge on which Ms McTavish has been committed." Under those circumstances he was of the opinion

that the petition should be refused. He went on to say that the questions of Ms McTavish's mental health

were not such as to justify depriving her of "her statutory rights in terms of Section 43 of the 1887 Act".

It was interesting that he went on to comment that the Advocate-depute had explained that the issue

relating to Ms McTavish's mental health had been raised so that "it should not be thought that the Crown

had been unaware of the possibilities flowing from possible release of the accused; and that the Crown

wanted it to be made public that they were alive to these possibilities and were taking all steps in their

power to see that they had discharged their duties not only to the accused but to the public ". After the

hearing on 2 October 1973 Ms McTavish was released from Custody on 4 October 1973 39. At that time

she had spent 87 days in Custody. The problem facing the Crown was that if she were to be re-arrested

and brought to trial she would have to spend a total of no more than a further 23 days in Custody. There,

for some time, matters rested. On 3 June 1974 she was finally served with a new indictment accusing

her, inter alia, of murder 40.

39In a recent Scots case, where the High Court did allow an extension to the 110 day period, to allow the Crown to complete its preparation in a murder case, their Lordships nonetheless granted bail to the accused so that he would not have to spend more than 110 days in custody before trial. (Welsh, Petitioner, 1990, SCCR 763).

40 The full text of the Indictment is as noted below:

"JESSIE MacTAVISH, care of Swift and Co., Solicitors 144 West George Street, Glasgow,

25

The trial of Jessie McTavish is unreported. However a transcript of the trial is available in the Crown

Office in Edinburgh and a copy of the minute of the trial is available in the Scottish Record office in

Edinburgh. Also, the trial was reported extensively in Scottish newspapers, these news reports being

highly selective and of variable quality. Before the trial started Jessie McTavish had, at a "pleading

diet", pleaded not guilty to the indictment.

The trial opened on 17 September 1974. It was clear that it would be complex and that a considerable of

highly technical evidence would have to be presented to the jury. The list of Productions, productions

being the Scots term for Exhibits, runs to 45 documents and reports prepared during the investigation and

97 items of physical evidence. Some of these Productions have a peculiarly Scots Law flavour about

them, for example; the joint post mortem report prepared by Gilbert Forbes the Regius Professor of

forensic medicine and Alan Watson the then senior lecturer in forensic medicine at Glasgow University.

Scots Law requires forensic post mortems to be carried out by two pathologists who prepare a joint

report. In the list of physical evidence is included 10 bottles of tissue extracts prepared during the course

of the attempts to assay insulin during the course of the investigation into the death of Mrs Lyon. One

26

hundred and sixteen witnesses are listed. Not all, were in fact called 41. After the jury had been sworn in

the Solicitor General, who was leading the Prosecution team, withdrew charges 2 and 3 listed on the

indictment. These charges related to prescriptions for dangerous drugs in which it was alleged that Ms

McTavish had forged the signature of a doctor authorising such drugs to be given by injection.

Two of the more gruesome exhibits listed are items 93 and 94 being pieces of respectively left and right

anterior forearm.

27

In a Scottish Criminal trial there is no address to the Court by the Prosecution before evidence is

28

presented. The jury 42 is empanelled, the indictment is read and the Prosecution, in the absence of any

legal submissions, proceeds to call its witnesses.

Initially most of the witnesses were nursing staff and relatives of patients who had been under the care of

Jessie McTavish. A male nurse, a Mr Carr, told of Ms McTavish injecting a patient with an "excessive"

dose of phenobarbitone, making no record of the use of the drug and, in response to what he ascribed to

his expression of surprise "Doctor likes them to go quietly". He also described her going in her

stockinged feet behind a screen to give the injection. Another nurse spoke of discussions about an

episode of "Ironside", referred to above where an untraceable injection had been used to kill patients in a

geriatric nursing home. She also described Ms McTavish giving an injection after which she said "she's

only got five minutes". Other similar episodes were described on the first day of the trial. On the second

day an auxiliary nurse gave evidence that she had become suspicious of Ms McTavish's activities after

three patients died in a week. She looked at the case notes and found no evidence of prescriptions for or

records of injections which she knew to have been given being recorded there. She also recorded finding

three empty insulin phials in a ward side room which rather surprised her as there were no patients for

whom insulin had been prescribed on the ward at that time. Other witnesses gave evidence of

unauthorised injections. One nurse in particular gave evidence of conversations with Ms McTavish in

which she said that she had made remarks to the effect that if she had injected insulin into patients and

killed them "they can dig up the bodies if they liked and they would not find any trace of insulin".

Evidence was also given by another ward sister that Ms McTavish had borrowed insulin on the day of her

arrest which was not documented. Two junior medical staff gave evidence in which the zeal, or lack

thereof of, with which they had applied themselves to their duties in Ms McTavish's ward was explored

in some detail as were irregularities in their certification of the fact of death and the completion of

cremation certificates. One doctor in particular, Dr R Saxena, denied that he had ever given injections,

apart for treating asthma, to patients on Ms McTavish's ward. He also denied that he had told her that she

could administer whatever drugs she liked to the patients on the ward. Dr Judge, the consultant,

described how, after hearing that three patients had died in a week, he thought Ms McTavish had taken

leave of her senses when she told him that she had been giving some patients unauthorised injections of

sterile water to make them feel better. He reported the matter to the hospital administration. This

appears to have been the action which initiated the Police investigation that culminated fairly rapidly in

the arrest of Ms McTavish.

On 25 September 1974 the Defence made application to the Court that Dr William Tilstone, a lecturer in

Forensic Science at Strathclyde University should be allowed to sit in the Court whilst Mr Raymond

Neville, a Prosecution expert gave evidence about the examination of tissue samples from Ms Lyon's

29

body. Mr Neville's evidence was to the effect that tissue from each forearm showed clear evidence of

needle tracks and that immunoassay and other tests, in particular tests whereby extracts of the tissue were

injected into mice and produced a drop in their blood glucose were consistent the tissue containing

excessive amounts of insulin. These findings were corroborated by two other scientists working at the

Wellcome Foundation. Professor Forbes and Dr Watson, the pathologists in the case, said that no

explanation other than the injection of insulin satisfied them as a cause for the death of Mrs Lyon in the

way in which she died, at the time she died and the symptoms she exhibited before she died. Evidence

was also given by two clinicians that the amount of insulin found in Mrs Lyon's tissue was compatible

with a lethal dose of insulin having been given. One particular finding of the pathologists was that there

was no evidence of any stroke having been suffered by Mrs Lyon. A crucial witness was the Police

Inspector who charged Ms McTavish. In response to the charge she said "I gave half a cc of insulin

soluble to Mrs Lyon only because she wanted to be put out of pain and misery and had trouble with her

bowels" and later "I gave Mrs Lyon a half cc of soluble insulin. She was taking a cerebral and was

wanting out of her misery". At this time Counsel for the Defence objected to the reply made to the

caution and charge and contended that the reply had been made to a charge of assault although a charge

of murder had been preferred later and that the charge of assault had been made after death of the person

assaulted. After hearing the Solicitor General, the Judge, Lord Robertson, "repelled the said objection".

This became a crucial issue in Ms McTavish's appeal.

The next stage was evidence adduced "on behalf of the panel in exculpation" that is to say, the case for

the Defence. This opened with Ms McTavish herself giving evidence. After dealing with her

qualifications her Advocate first took her through the events relating to the death of Mrs Martha Devine.

It was in relation to this death that one of the charges to forging a prescription for Pethidine had

originally been made and which had subsequently been dropped. Ms McTavish said that Dr Saxena had

been contacted and declined to come to the ward saying: "You are trained, give her what you like" to

which Ms McTavish said that she replied "what about Pethidine?" and he agreed. She followed this up

with an injection, she said, of Largactil (chlorpromazine). This was the injection, she said that Mr Carr

had seen her give and she went on to say that her subsequent remark "Doctor likes them to go quietly"

was not an abnormal remark for a person working on a geriatric ward to make.

Ms McTavish denied giving a patient, Margaret Ward, injections of insulin on the night of 26 June. Mrs

Ward died the following day.

In respect of the injections given to Mrs Lyon she admitted giving her Pethidine and an injection of

sterile water. In the course of her examination in chief she also stated that the consultant in charge of her

30

ward, Dr Judge, had given her authority to give any injections that she thought necessary. She admitted

giving a total of 11 injections to four patients. She was also unable to explain what had happened to a

bottle of insulin which had gone missing from her ward cupboard. She also stated that her response to

Inspector Patterson when she was charged was not that she had injected insulin but that she had talked

about injections of sterile water only. She also intimated that Inspector Patterson had threatened her by

talking about breaking her before she was charged. She also averred that Inspector Patterson had said

that if she admitted to injecting insulin the likely consequence would be a "£5 fine in the Sheriff's Court".

Expert evidence was then adduced by the defence. A consultant physician in diabetes talked about the

rate of disappearance of insulin from the body. He said that a dose of 60 units of insulin would probably

be a lethal dose but he did not agree that the symptoms shown by Mrs Lyon before she died necessarily

related to insulin poisoning.

The next expert for the defence was Dr Tilstone. Dr Tilstone was initially trained in pharmacy and

pharmacology. He took his PhD in the department of pathological biochemistry at Glasgow Royal

Infirmary where he had acquired considerable experience in radio-immuno-assay techniques and, at the

time of this case was a lecturer in forensic science at the University of Strathclyde. Much of Dr

Tilstone's evidence about the analysis of post mortem samples for insulin echoes the evidence given in

the preliminary enquiry in Susan Nelles' case about the difficulties of analysing post mortem samples for

Digoxin by Radio-Immuno-Assay. Dr Tilstone's evidence was basically about the degree of probability

that the tests on the tissue from Mrs Lyon's forearm produced results that showed that the tissue contained

excessive amounts of insulin. He admitted that the tests showed that the tissue contained insulin like

material but, in his 59 pages of evidence, he could not be persuaded to admit that the material was insulin

itself. In the course of what appears to have been a remarkably acerbic cross examination he admitted

that he knew of no other substance than insulin which would have given a positive result under the

various tests carried out for insulin on the tissue removed from Mrs Lyon's left forearm and that no one

else had described such a substance. He also disagreed that the amount of substance found in the tissues

might necessarily indicate that a lethal dose of insulin had been administered to Mrs Lyon if the material

were indeed insulin. He also attempted to suggest that the insulin found in some syringes in Ms

McTavish's ward could have been attracted into the syringes by capillary action through the needle.

However he agreed that the material found in the syringes was "unquestionably insulin".

Other evidence called by Ms McTavish's Advocates included a hospital telephonist who gave evidence

about the difficulty he had on many occasions in contacting Dr Ram Saxena, particularly when Dr

31

Saxena was doing locum duties outwith the hospital when he was ostensibly also "on call" for the

geriatric unit..

Apart from some questions from her own Advocate during her examination in chief about her state of

mind, no evidence was presented about Ms McTavish's mental health during the trial.

After the closing jury speeches by the Solicitor General and Ms McTavish's Advocate the presiding

judge, Lord Robertson commenced his charge to the jury on the morning of Monday 7 October. The first

part of the charge might well have been given by any English judge. However when he came to the

question of directing the jury on the question of corroboration, the deviation of Scots Law from the Law

of England in this area became apparent. Lord Robertson said "it is a general rule in a criminal case in

Scotland that an accused person cannot be convicted of a crime unless there is evidence from at least two

witnesses or sources implicating him or her with the commission of the crime". The question of hearsay

evidence had arisen at several points in the trial and Lord Robertson directed the jury in the following

terms:

"In the course of the evidence......there was from time to time evidence led of statements

made by one witness to another outwith the presence of the accused. In general nothing

said by anyone outwith the presence of an accused person can be evidence against that

accused in a trial and I direct you to put out of your mind any such evidence. Statements,

on the other hand, by an accused person or to an accused person or statements made in

the presence of an accused person are in a different position, whatever their importance,

because if present the accused, if she heard the statement could answer, deny or repute

what was said, and so such a statement could be competent evidence for or against her".

Later in his charge Lord Robertson discussed the law, as it then stood in Scotland, in relation to the

statements made to the Police in criminal cases. Broadly, he said, law attempted to reconcile two

principles that are basic; that the Police should not be unduly hampered in their investigations and

secondly that the accused should not be bound to incriminate herself. He went on to say that when the

Police are making investigations, before they have reached the stage where a person is suspected or

detained or charged then they can ask any question of anyone and, " if at the end of day one of those

persons is in fact charged then anything said by him or her in answer to those questions may be evidence

against him at a later trial". He went on to say that once an accused person had been formally cautioned

and charged and was in custody then the Police could not ask him or her any questions and use those

32

answers in Court unless those were answers which were voluntary given not elicited in response to any

pressures or inducement or by cross examination. Lord Robertson went on to point out that there was

also an intermediate area where a person questioned may have become a subject but has not yet been

charged although they may have been brought to a Police station. At that stage he said statements or

confessions made by an accused would not be proper evidence against him or her at a subsequent trial if

obtained by questioning from the Police by cross examination or by third degree methods are

inducements. However any statement made voluntarily would be admissible at subsequent trial. On the

account of Inspector Patterson, Ms McTavish had made certain admissions against her interest after she

33

was charged 43. The Police denied that any inducement or pressure had been laid upon Ms McTavish

before she made those statements. Lord Robertson did not make any comment about Ms McTavish's

account of what she said to the Police officers which was elicited by her Advocate during her

examination in chief.

After lunch the jury retired at 1.50 p.m. and returned at 5.30 p.m.. The jury found Ms McTavish guilty

on the charges, as listed in the indictment numbers 1, 5, 6 and 7 by a majority and unanimously not guilty

on charges 2, 3 and 4. (In Scottish Criminal Courts, juries consist of 15 people and are entitled to bring in

34

a majority verdict, when at least 8 out of the 15 jurors agree.) Lord Robertson, after hearing a submission

35

from the Solicitor General,44 sentenced Jessie McTavish as follows :

"Jessie McTavish on charges 1, 5 and 6, in view of the length of time that you have been in

custody I shall admonish you. On charge 7, you have been found guilty of the gravest

crime in Scotland, and I will sentence you to imprisonment for life".

36

The front page of the Scottish Daily Record of the morning after Ms McTavish's conviction

Following the trial a letter appeared in the Times from Lord Platt, a former President of the Royal

College of Physicians who wrote: "I do hope that if I live to be senile demented, incontinent and a

nuisance exposed to those who care for me, that, if Sister McTavish is by then released, they will have the

37

good sense to let me spend my last days on her ward." 45 Euthanasia had never been an issue in the trial

or the public discussion in Scotland before the trial.

38

She appealed on six grounds, but her Advocate stated that he was relying principally on the first two.

The first ground was that Lord Robertson was wrong to admit the evidence of the Police concerning the

alleged replies that Ms McTavish made when she was charged with assaulting Mrs Lyon because:

a) The charge in the indictment was one of murdering Mrs Lyon and

b) at the time she was charged, the charge was one of assault and both the defendant and the Police were

aware that Mrs Lyon was already dead and that a post mortem examination had been held.

Their Lordships were of the opinion that at the time Ms McTavish was charged there was no evidence

available to link the alleged assault on Mrs Lyon to her death.

The second comment made by their Lordships was that the species facti (specification of the facts) was

substantially the same in an assault charge as in a murder charge although a murder charge is more

detailed. Both charges were in the same category of crime. Their Lordships thus felt that Ms McTavish's

reply to the charge of assault was competent evidence in the trial on the murder charge. Thus the first

ground of appeal fell.

The second ground of appeal was that Lord Robertson had misdirected the juries in respect of the events

in the Police Station and Ms McTavish's alleged replies when charged. In his charge to the jury Lord

Robertson had concentrated only on the question of whether or not Ms McTavish's reply to the charge

had been elicited fairly and he did not put to the jury Ms McTavish's denial, in Court, of having made the

replies. He also was said to have failed to direct the Jury on the evidential value of the Police evidence

of Ms McTavish's alleged remark, having regard to the fact that the Solicitor General had conceded in his

jury speech that if those remarks had been the main evidence against Ms McTavish he would have been

"less than happy with it". Their Lordships similarly dismissed the latter point, merely saying that in their

opinion it "is not a valid complaint". However their Lordships were more impressed with the first part of

39

the argument. Ms McTavish's Advocate relied on the case of H M Advocate v Mills 47. One relevant

passage from that judgement (P534) was "the attention of the jury, in my view, ought to have been

directed specifically to the appellant's evidence, and they ought to have been told that they must consider

in making up their mind whether the appellant had in fact used the words attributed to him by Warnock

[Warnock was the Police Officer to whom Mills alleged statement admitting murder had been made] no

such direction was given. On the contrary, the charge was calculated to convey to the Jury the impression

that the statement alleged by Warnock was indisputably proved". Ms McTavish's Advocate argued that

Lord Atcheson's words in Mills were "exactly apposite". He argued that permission to give proper

direction on the question as to whether or not the evidence of Ms McTavish's statements the Police

witnesses were proven was fatal to the conviction. The Solicitor General, in his reply attempted to

distinguish the facts in Ms McTavish's case from those in Mills. However their Lordships felt that Lord

Atcheson's judgement was apposite to Ms McTavish's case. He reached the conclusion that Lord

Robertson's charge to the jury was liable to convey to them the impression that the statements by the

Police witnesses were indisputably proved and that by failing to draw attention in specific terms to Ms

McTavish's own account of what was said Lord Robertson's charge constituted a misdirection in law.

Their Lordships went on to say:

"The question then, as always is whether this omission was sufficiently material to vitiate

the verdict. The answer to that can only be that it was". They went on to quote, with

approval, the words of Lord Atcheson in Mills who had said "I reached this conclusion

with regret. It can never be a light thing to interfere with a verdict of a jury on a charge

of murder and, as I have already said, there is in my view ample evidence to support the

verdict; but, by the law of Scotland, an accused person is entitled to have his case tried

with an adequate direction to the jury and if on any vital matter the direction is

inadequate so as to amount to misdirection it is our plain duty to set the verdict aside" .

Accordingly, their Lordships allowed the appeal and the verdict and sentence on the charge of murder

was quashed they went on to say that it was unnecessary to deal with the other grounds of appeal but

noted that if it had been necessary to give an opinion on them they would have rejected them. Ms

McTavish was immediately released from custody. The headline of the Scottish Daily Record on

Saturday 1 February 1975, the day after her appeal was "I want to be a nurse again", this being an alleged

quote made to a newspaper reporter. On 25 March 1975 the Scottish Daily Record reported that Jessie

McTavish's name had been removed from the Register of Nurses in Scotland. There one might have

thought the story would have ended. However Ms McTavish went on to marry, becoming Mrs George

Main a year to the day after she was released from prison on her appeal. In September 1984 she was

40

restored, under the name of Mrs Jessie Gordon, to the general nursing and fever nursing part of the

Professional Register of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting

41

(UKCC).48 No material relating to any evidence or argument which might have been adduced at either

the hearing of the National Board for Nursing, Midwifery and Health Visiting for Scotland at which her

name was struck from the Register or the hearing of the UKCC at which her name was restored to the

Register is in the public domain. Dr Ram Saxena's name has remained on the Medical Register.

42

Chapter 3

Texas -v- Genene Jones

The case of Genene Jones is, arguably, the most notorious and well publicised of all the cases where

health care professionals have been alleged to have systematically harmed their patients. Apart from

you are Indicted at the instance of The Right Honourable RONALD KING MURRAY, Her Majesty's Advocate, and the

charges against you are that in Ward 5, Ruchill Hospital, Glasgow, you did

1. on various occasions on 24th and 25th June 1973, assault Martha O'Hara or Devine, then a patient there and now

deceased, and did without medical authority or prescription or as a necessity of her medical treatment administer to her by

injection by hypodermic syringe a drug namely, Pethidine, or other substance or substances to the Prosecutor unknown to

her injury and to the danger of her life;

2. on 24th June 1973, in the Dangerous Drugs Register of said Ward 5 utter as genuine an entry recording that an injection

on said date of 100 milligrammes of Pethidine be given to said Martha O'Hara or Devine on which the name "R Saxena" bore

to be singed as the doctor authorising such injection, such signature being forged;

3. on 25th June 1973 in said Dangerous Drugs Register utter as genuine an entry recording that an injection on said date of

50 milligrams of Pethidine be given to said Martha O'Hara or Devine on which the name "R Saxena" bore to be signed as the

doctor authorising such injection such signature being forged;

4. on 26th June 1973, assault Margaret Ward, then a patient there and now deceased, and did without medical authority or

prescription or as a necessity of her medical treatment, administer to her by injection by hypodermic syringe a quantity of

soluble insulin or other substance to the Prosecutor unknown to her injury;

5. on 30th June 1973, assault May Reid or Logan, a patient there, and did without medical authority or prescription or as a

necessity of her medical treatment administer to her by injection by hypodermic syringe a quantity of soluble insulin or other

substance to the Prosecutor unknown to her injury;

43

numerous newspaper articles in the United States her case has provided the material for two books and

one "Docudrama" 49 .

Genene Jones was born in July 1950 in San Antonio, Texas 50. She was adopted into a middle class

family. After graduating from High School, where she did not do particularly well academically, she

initially trained as a hairdresser and beautician. On completing her training she worked in a Beauty Shop

in San Antonio Medical Centre. In 1976 she enrolled in the San Antonio Independent School District

School of Vocational Nursing. She did well there, in the one year course, scoring particularly high marks

6. on 30th June 1973, assault Agnes Cottar or Rowan, a patient there, and did without medical authority or prescription or as

a necessity of her medical treatment, and under the pretence made by you to her that you were giving her a new drug for the

treatment of Parkinson's Disease, administer to her by injection by hypodermic syringe a quantity of soluble insulin or other

substance to the Prosecutor unknown to her injury; and.

7. on 30th June 1973, assault Elizabeth Lyon, a patient there, and did without medical authority or prescription, or as a

necessity of her medical treatment repeatedly administer to her by injections by hypodermic syringe quantities of soluble

insulin and in consequence thereof she died there on 1 July 1973 and you did murder her."

41The prosecution in Scotland cannot call any witness not on the list prepared and given to the accused before the trial.

42A Scots Jury has 15 members. It can return majority verdicts. It has verdicts of Guilty, Not Guilty and Not Proven available to it. Not Proven essentially means guilty but not to the extent that the cae is proved beyond reasonable doubt. A Not Proven verdict results in the discharge of the prisoner.

43 This is hearsay evidence, but would be admissible under the common law supposition that admissions made against interest are likely to be true. 44 In a Scottish Criminal case, the Judge will not move to sentence the defendant after a finding of guilt until requested to do so on a motion put to him by the prosecuting Advocate. One advantage of this is that the Judge is insulated from any plea bargaining that might go one between prosecution and defence. Cameron of Lochbroom. False prophets and siren voices. Journal of the Forensic Science Society 1992;32: 191-208.

45Lord Platt. Ruchill Hospital murder case. The Times, 11 October 1974 p15. 46HMA -v- Mctavish 1975 SLT 27-30

47HMA -v- Mills 1935 JC 77 & HMA -v- Mills 1935 SLT 532.

48Personal Communication, UKCC.49Elkind P. The Death Shift.New York: Viking Books,1989. . Moore K, Reed D.Deadly Medicine . New York: St Martin's Press 1988. Deadly Medicine starring Veronica Hammel & Susan Ruttan, NBC TVM 1991, not yet broadcast in the UK.

50My sources for this chapter include the two books cited above, the report of Ms Jones appeal, vide infra, and the DIALOG on-line edition of the Houston Post.

44

in the section of the course dealing with maternal and child health and was amongst the 30% of the class

who graduated with honours. Two months after graduating she gave birth to her second child.

After she started working as a Licensed Vocational Nurse (LVN), her employment history was not

outstanding. She was dismissed rather than resigning from her first two nursing posts. The reason given

for her dismissal from her first post was "improper unprofessional conduct on duty", (she shouted at a

patient and the patient's physician, after which the patient developed chest pains). She was dismissed

from her second post for taking leave to undergo elective surgery (a tubal ligation or sterilisation

procedure) at a time when she had not accumulated any entitlement to sick leave. She was appointed to

her third post in the Paediatric Intensive Care Unit at San Antonio Medical Centre. She took up her post

on 30 October 1978. Nothing in her personnel records showed that she had been dismissed from her first

nursing post for verbally abusing a patient.

The nucleus of the San Antonio Medical Centre had been opened as the Bexar County Hospital in

November 1968. It was a 12 storey 600 bed with 3 adult intensive car units (medical, surgical and

coronary care). The hospital had a 54 bedded paediatric ward with a 4 bed intermediate care area (a High

Dependency Unit in British terminology), an 8 bedded paediatric intensive care unit (PICU) with a

separate 48 bedded Special Baby Care Unit (SBCU). The 8 bedded PICU provided intensive care for

both medical and surgical cases between an age range of outwith the neonatal period to 15 years of age.

There were approximately 300 to 500 admissions to the unit per year. Nursing staff at the hospital

worked, as is common in American hospitals, three shifts; 7.00 am - 3.00 pm, 3.00 pm - 11.00 pm and

11.00 pm - 7.00 am. The catchment area for the hospital was a poor area of San Antonio, largely

populated by Spanish speaking Mexican-Americans.

The physical arrangement of the paediatric ICU was that it contained 8 beds, with as one or two beds in

each of 6 separate cubicles. The cubicles had glass windows so that nurses, not at the bedside, could

monitor patients and the various pieces of medical technology connected to them. To the rear of the

PICU was a rest room. As well as providing an area where staff could sit and relax it also contained

diagnostic equipment, such as blood gas machines and supplies. Near the entrance to the PICU was a

locked drug cupboard where narcotics were stored. Most other drugs were kept in a unlocked drug

closet.

During her first year of employment a number of negative comments were made about Ms Jones by her

superiors. She made a number of more or less serious errors in administering drugs and she made a

45

number of errors related to the operation of ICU equipment. An excessive degree of emotional

involvement with patients was documented and on at least one occasion she disobeyed direct orders from

her supervisors. However to counter balance this she was apparently prepared to work extra shifts to

cover shortages in nursing staff on the unit. She also asked to be assigned to the sickest patients in the

unit.

During 1981, medical staff began to notice an unusual pattern in unexpected deaths in children in the

PICU. The unexpected deaths tended to occur in children who, although seriously ill, were not

necessarily expected to die. These deaths took place on the 3.00 pm to 11.00 pm shift, the one on which

Genene Jones worked A number of junior medical staff noted that these deaths tended to occur in

patients to whom Ms Jones had either been assigned or to whom she had assigned herself. The Medical

Director of the PICU was also aware of these problems but, when he shared them with senior nursing

staff he was rebuffed. Ms Jones had a strong personality which produced a somewhat mixed reaction

amongst those who worked with her and nursing administrators tended to ascribe the concerns expressed

about her to malicious rumour mongering.

During 1981 Ms Jones was herself admitted to the hospital for a variety of complaints which she insisted

were investigated fully. As a result, she was subjected to number of unpleasant invasive investigations.

The outcome was that no organic cause could be found for her illness 51.

The PICU director responded to his concerns and the concerns of his junior medical staff by ordering

additional laboratory investigations be requested when children unexpectedly "went off". After an

episode, involving one of Ms Jones' patients where an excessive amount of heparin had been given to the

child, resulting in near catastrophic bleeding, it was made a rule that all heparin doses had to be checked

and signed by two nurses before administration. As time went on other special precautions were taken.

These precautions included nursing staff having to sign case records to confirm that all equipment was

working correctly at the start and the end of a shift. Switches on critical equipment would be taped so

that they could not be easily switched to an inappropriate setting and some junior medical staff took to

sleeping in the unit to maintain observation of their patients.

Eventually, the director of the PICU shared his concerns with the acting Chairman of the Division of

Paediatrics. He was sceptical, not believing that there was a genuine problem particularly in the face of

senior nursing staff still maintaining that there was a campaign of victimisation against Ms Jones.

51This type of behaviour borders on that shown by patients suffering from Munchausen's Syndrome (see p xx)

46

However, in late 1981 the problem was taken to the hospital administrator. Records of his conversation

with the acting Chairman of the Division of Paediatrics indicated that the possibility of an excessive

number of deaths in the paediatric intensive care unit was discussed. The possibility that a particular

LVN was implicated was also mentioned. The major concern appears to have been whether or not the

director of the PICU was reacting emotionally to the problem although it was agreed that there might

eventually need to be an outside investigation. Nothing was done.

An episode then took place, which eventually formed the basis for the charge which was heard in Ms

Jones second criminal trial, when it was documented by laboratory evidence that a excessive amount of

heparin had been given to a child, Rolando Santos, during the 3.00 pm - 11.00 pm shift on two different

days in January 1982.

Eventually, after the death of a patient following straightforward cardiac surgery, a senior cardio-thoracic

surgeon went to the chairman of the hospital medical staff to complain. The response of the chairman of

the hospital medical staff was to ask the director of the PICU and a nursing administrator to start an

investigation. To ensure that this was done he copied his memo widely throughout the hospital.

The PICU director eventually recommended that an external investigation be carried out. The response of

the hospital was to appoint a visiting professor, a paediatric anaesthetist with PICU experience, from

Toronto Children's Hospital, to investigate the matter. This visiting professor had seen at first hand what

had happened in Toronto during the investigation of the deaths in the cardiac unit there as described in

chapter 1. He had seen how the hospital staff had been polarised and how the reputation of the hospital

had been compromised, without a successful prosecution being brought. Thus it might be thought he

could have entered the investigation with a certain perceptual set. Although the committee he chaired

recognised that Ms Jones was the centre of the problems in the paediatric intensive care unit they

ascribed the unexpected deaths to a variety of factors. The factors the committee identified included the

variable quality of junior medical staff in training, a critical shortage of nursing staff and poor

communications between nurses and medical staff with "adversarial relationships" being the rule rather

than the exception.

When this report was received by the Hospital administration their response was to close the PICU for

refurbishment and to assign its director and the director of its nursing staff to new posts. The problem of

Genene Jones was addressed not by dismissing her but by making her redundant. The stratagem adopted

was to upgrade the nursing staff of all the intensive care units in the hospitals so that only Registered

47

Nurses, and not LVNs would be employed there. Ms Jones, along with a number of her fellow LANs was

thus effectively made redundant. All were given letters of reference. Ms Jones' letter of reference read as

follows:

"To whom it may concern:

Due to the recommendation of a recent Pediatric Intensive Care Site Team Visit the

Pediatric ICU is being converted to an all RN staff composition at the Medical Center

Hospital.

Ms Genene Jones LVN has been employed in the PICU since 1978. This move in no way

reflects her performance in the unit. She had gained valuable knowledge and experience in

Pediatric Intensive Care nursing. During the time of her employment this employee had

been loyal, dependable and trustworthy.

Ms Genene Jones LVN has been an asset to the Bexar County Hospital District and I would

recommend continued employment."52

Ms Jones ceased employment at San Antonio Medical Centre in March 1982. After she left the hospital,

a novel,"The Sisterhood", was found in the PICU rest room inscribed with her name. The Sisterhood 53 is

a novel describing a group of nurses who carried patient advocacy 54 to its logical extreme by killing

patients in hospital when circumstances were such that their (the nurses') perception was that the

application of medical technology had reached a stage where the treatment was causing unnecessary

suffering to the patient with no possibility of recovery.

After Ms Jones left San Antonio Medical Centre it was not long before she found another job.

52Elkin op cit p152

53Palmer M. "The Sisterhood". ISBN 0340331879. Hodder & Stoughton 1982.

54 For a short account of patient advocacy by nurses see Pyne RH. Professional Discipline in Nursing, Midwifery and Health Visiting. 2nd ed.Oxford:Blackwell Scientific Publications at page 152.

48

Dr Kathleen Holland was a junior doctor who had trained in paediatrics and had sided with Ms Jones

during the chaotic last few months of 1981. She had completed her training and was planning to set up

practice as a paediatrician in Kerrville, a small town in rural Texas. Ms Jones had agreed to work as her

practice nurse. Dr Holland opened her practice on 1 August 1982. On 24 August 1982 Chelsea

McClellan, a 14 month old girl, was brought to Dr Holland's office by her mother because she was

snuffly. Dr Holland took a medical history from Chelsea's mother while Ms Jones took the child into

another room. Shortly thereafter she called for Dr Holland saying that the child had suffered a seizure.

The child spent 8 days in hospital after the episode. An electroencephalogram showed no sign of

epileptic activity.

Chelsea was brought back to Dr Holland's office on 17 September 1982. Dr Holland decided to give her

"her baby shots". Ms Jones injected Chelsea in the arm and in the left upper thigh with two prepared

syringes. Shortly thereafter Chelsea became limp with open eyes. Ms Jones called Dr Holland and

Chelsea was taken to the local hospital. Chelsea was then transferred by ambulance to San Antonio. Ms

Jones travelled in the ambulance with Chelsea, Dr Holland followed behind in a car. As Chelsea was

loaded into the ambulance, Ms Jones was seen to give her a second injection into her left thigh. She said

to another nurse that this injection was Valium. The second nurse thought this strange as she had already

given Chelsea an injection of Valium. En route to the Medical Center Chelsea suffered a cardiac arrest

from which she could not be resuscitated. At post mortem examination no cause was found and, although

not fulfilling the standard diagnostic criteria, her death was ascribed to the Sudden Infant Death

Syndrome.

Within a one month period at least 5 other children apparently suffered seizures in Dr Holland's office

whilst in the presence of Ms Jones. Dr Holland's colleagues noted that something was amiss and

withdrew her right to admit patients to the local hospital. Also a vial of the drug Suxamethonium went

missing from Dr Holland's office, only to be found later with several unexplained puncture marks in its

rubber cap. Suxamethonium is also known as Succinylcholine with the North American trade name of

"Anectine". Suxamethonium is a drug used during the induction of anaesthesia. Its function is a muscle

relaxant and is used to paralyse patients at the start of anaesthesia so that a tube can be inserted into their

trachea to facilitate artificial ventilation. Suxamethonium would have no place among the drug stock

carried by a paediatrician in office practice. The drug had been supplied against an order written by Ms

Jones, countersigned by Dr Holland. A criminal investigation followed which culminated in Ms Jones

arrest.

49

Ms Jones was indicted by two Grand Juries in different parts of Texas. The first indictment charged her

with the murder of Chelsea McClellan. The second indictment, handed down by a special Bexar County

Grand Jury on 21 November 1983, charged her with assaulting the child, Rolando Santos, who had

suffered from bleeding problems after the injection of overdoses of heparin in January 1982. Despite a

massive investigation and the presentation of a mass of statistical evidence the Grand Jury did not place

any other matters on the indictment. One problem that the Grand Jury may have faced during its

deliberations might well have been the problem of causation. When Professor Vincent DiMiao, the

distinguished forensic pathology who was, inter alia, Chief Medical Examiner in the San Antonio area

carried out a number of exhumations of children who had been identified as dying in suspicious

circumstances in the paediatric intensive care unit, the bodies were found to be skeletonised. This was

found not the case when Chelsea McClellan's body was exhumed on 7 May 1983. It was well preserved.

Tissue samples were collected and handed to a toxicologist who took them to Professor B R Holmstedt's

laboratory at the Karolinski Institute in Stockholm. Using an ion-pairing technique to extract

Succinylcholine from the tissue obtained at the second post mortem examination on Chelsea McClellan it

was possible, after subjecting the extracts to gas chromatography - mass spectroscopy (GC-MS), to reach

the conclusion that the tissues contained Succinylcholine, the highest concentration being found in her

left thigh 55.

Ms Jones first trial opened in January 1984. The Court heard the account of Chelsea McClellan's illness

as outlined above. They also heard that the pathologist who had carried out the first autopsy on Chelsea

McClellan's body had, when in receipt of better details of the medical history, withdrawn her original

diagnosis of the Sudden Infant Death Syndrome. She stated that even if she had not known that

succinylcholine had been found in Chelsea's tissues she would have excluded the diagnosis of SIDS on

the basis of the more detailed medical history she had since been provided with.

A significant proportion of the toxicological evidence was heard as a "trial within a trial" to establish

whether or not Professor Holmstedt's technique fulfilled the criteria set out in Frye - v - United States 56

for the introduction of evidence involving novel scientific techniques. (See chapter 7).

The Court also allowed the submission of "similar fact" evidence in that the Court agreed to the

admission of descriptions of 5 other cases in which children under the care of Ms Jones had suffered

55The method used has been reported in the literature: Forney RB et al. Identification and quantitation of succinylcholine in embalmed tissue. Journal of Anal Toxicology 1982;6: 115-119.

56Frye -v- United States, 293 F. 1013 (DC Cir 1923).

50

episodes of seizures or respiratory arrests between 27 August 1982 to 27 September 1982. The

Prosecution offered these cases to show a common pattern viz: "An unexplained seizure or respiratory

arrest in a child who had been subject to a treatment involving an injection or an intravenous infusion

where Ms Jones had either prepared or used the injection." One reason why this evidence was presented

by the State was to demonstrate motive.

Evidence as to motive was also presented in the form of statements in which Ms Jones had advocated

the setting up of a specialised PICU in Kerrsville, in the small country town where Dr Holland had set up

her practice. One nurse gave evidence that Ms Jones had discussed this possibility with her. When the

nurse had said that there would not be sufficient cases to justify such a unit Ms Jones was stated to have

replied "Oh, they are out there. All you have to do is go and find them." She had also told the nurse that

she thought that the unit should be staffed entirely by licensed vocational nurses rather than registered

nurses. This was also adduced as evidence in support of another motive, namely that Ms Jones wished to

demonstrate the superior capabilities of Licensed Vocational Nurses. She had described herself as a

"Pediatric Clinician" a title which, whilst not restricted in Texas law, was usually applied only to

Registered Nurses who had undergone specialist post graduate training.

Despite the highly complex nature of the evidence they had heard the jury returned an unanimous verdict

of guilty in less than three and half hours. Ms Jones was sentenced to 99 years in prison.

Her second trial, on a charge of assaulting Rolando Santos, started on 15 October 1983. Again a variety

of evidence was presented by the Prosecution, much of it being "similar fact" evidence:

Medical and nursing staff who had kept diaries testified how patients became sicker when Ms Jones was

on duty and improved when she was not on duty.

A trainee paediatrician gave evidence as to how his patients did well when he was getting on well with

Ms Jones and did badly when he had disagreements with her. He also recounted an episode where he had

found Ms Jones was about to inject a patient with 300 times the appropriate dose of heparin. This error

being ascribed, at the time, to a miscalculation.

Evidence was presented about the problems experienced by Rolando Santos, the child named in the

indictment. His repeated bleeding episodes and the discovery of substantial amounts of heparin in his

body were well documented.

51

A substantial part of the evidence was that given by Dr Gregory Istre from the Centres for Disease

Control who presented the epidemiological data. This could be summarised quite simply; when Ms Jones

was on duty a child in the paediatric intensive care unit at San Antonio Medical Centre was 25 times

more likely to have a cardiac arrest and 10 times more likely to die than when she was not on duty.

A final witness for the Prosecution was a woman who had been incarcerated with Ms Jones after her

arrest. She gave evidence that Ms Jones had asked her what she been arrested for. She replied "driving

whilst intoxicated" and then had asked Ms Jones what she had been arrested for to which she replied: "I'm

Genene Jones, the nurse that killed the babies" 57 .

As in her first trial Ms Jones chose not to give evidence herself.

After hearing the closing arguments the Judge did not retire to consider the evidence. He immediately

pronounced a finding of Ms Jones guilt and sentenced her to 60 years imprisonment.

Ms Jones appeal against her conviction for murder was heard in 1986. The grounds of her appeal related

specifically to the application of the Frye test to the gas chromatographic mass spectroscopic

determination of succinylcholine. She also appealed against the admissibility of the "similar fact"

evidence and on a technical matter related to whether or not she could be reasonably certain that her

action in injecting succinylcholine was reasonably certain to cause serious bodily injury or whether she

was merely reckless in so injecting it. In Texas law the intentional act implies murder and the reckless

act implies involuntary manslaughter. Her ground of appeal was that the jury should have been directed

towards a verdict of involuntary manslaughter if they felt that her injection of Succinylcholine had not

been intentional but merely reckless.

Her appeal failed on all grounds. She remains incarcerated.

57Hearsay evidence, admissible in common law as it is effectively an admission against interest

52

Chapter 4

Maryland -v- Jane Bolding 58

Jane Bolding's case has not been reported in Court reports. However the events that led to her trial, and

the trial itself took place within 12 miles or so of the Capitol in Washington DC, in the commuter belt

area of Prince George's County, Maryland. This is well within the circulation area of the "Washington

Post". The Washington Post reported the case thoroughly. In many ways the case is very typical, in so

far as any case can be, of the situations that may arise when a health care worker is accused of

systematically harming his or her patients.

Mary Jane Bolding was born in 1958. She was an adopted child of considerable intellectual ability

graduating in the top 10% of her class at Bladensburg High School (Bladensburg is a small town in

Prince George's County, Maryland to the south east of Washington DC). After leaving High School she

worked for her nursing qualification whilst, at the same time, acquiring qualifications as an Emergency

Medical Technician. She worked in this role part time whilst training as a nurse. After graduating from

a community college with an Associate Degree in Nursing in 1983, she became a registered nurse and

started working in the intensive care unit at Prince George's County General Hospital (Cheverly,

Maryland) where she had done part of her training. Cheverly although outside Washington proper, lies

inside the Beltway, Washington's equivalent of the M25. She had worked at that hospital since 1976 in

one capacity or another. Though working in Maryland she lived in the district of Columbia on F Street

South East, about one mile south east of the Capitol. This is not a particularly salubrious area and she is

said to have been assaulted and sexually abused by two men outside her home in March 1978. Also in

that year she had a termination of pregnancy. As a nurse she was highly thought of by her peers and

supervisors, it being said of her that she always asked to be assigned to the sickest patients in the

intensive care unit.

58This chapter is mainly based on reports in the DIALOG on-line edition of The Washington Post and the scientific report of the case: Sacks JJ, Stroup DF, Will ML et al. A nurse-associated epidemic of cardiac arrests in an intensive care unit. Journal of the American Medical Association 1988;259:689-695. The Centers for Disease Control report of their investigation is unfortunately not available in the British Library:

53

Map showing the location of the principle events in this case; Ms Bolding's place of birth and education,

residence, place of work and location of the trial

In March 1985 an unusual cluster of deaths in the intensive care units was noted by the hospital

administration. After a 16 year old boy, Gordon Dodson, who had suffered a broken jaw in a road traffic

accident, had three unexplained cardiac arrests whilst under Ms Bolding's care, the hospital

administration initiated a internal audit as a result of which they suspended Ms Bolding from duty and

informed the Police. Ms Bolding was arrested and interrogated for 22 hours. A lawyer specialising in

labour law was instructed by the Hospital Nurses Association and spent five and half hours at the Police

station where Ms Bolding was being held. She was told by Police that Ms Bolding did not wish to see

her. I was later suggested that Ms Bolding had not been informed of his attendance at the police station. 59

The Hospital Nurses Association then instructed a criminal lawyer who initiated a writ of Habeas

Corpus. This was denied by a St George's Circuit Court Judge when he heard evidence that Ms Bolding

was about to be charged with murder. Documentary evidence was brought before the Court which said

59In England and Wales, when a solicitor arrives at a police station to see a particular detained person then that person must be so informed. PACE Code of Practice C, section 6.15. A number of exclusions to this right are set out in Annex B to the Code of Practice.

54

that Ms Bolding had confessed to killing a patient "by intentionally administering lethal amounts of

potassium, knowing that this amount would could the death and relieve Deckerson (the patient) from pain

and suffering." The admissibility of Ms Bolding's confession was to figure prominently in the later Court

hearings.

A week after her arrest the charges against Ms Bolding were dropped because the Prince George's States'

Attorney considered that there was insufficient evidence to proceed at that time. However, the Police

investigation proceeded amid a certain amount of difficulty when the hospital declined to allow them

access to all the documents that they wished to examine. Eventually search warrants were issued and an

agreement was reached when approximately 33,000 documents were placed in a special hospital room

under Police guard where both Police Officers and hospital officials could have access to them.

The next stage in the investigation was that the Centre for Disease Control in Atlanta was asked to

analyse the epidemiology of the cluster of cardiac arrests which had taken place in the hospital. The

hospital contributed 60,500 dollars to the cost of this investigation. The final cost to the Federal

Government was 255,000 dollars. By August 1986 it was apparent that the cluster of deaths could be

associated with particular individual, identified as Nurse 14. Nurse 14 was Mary Bolding. She was the

attending nurse in 57 (40%) of 144 cases of fatal and non fatal cardiac arrests in the hospital's intensive

care unit between January 1984 and March 1985.

Ms Bolding was initially dismissed from her hospital post, but after representations from the Professional

Nurses Association of Maryland, an agreement was reached whereby she was allowed to resign rather

than being dismissed.

After the Centre for Disease Control report was made available to the Police, the case was taken before a

Grand Jury. A mass of evidence was heard by the Grand Jury, involving allegations that Ms Bolding was

implicated in the deaths of around 22 patients.

55

Eventually Ms Bolding was indicted of:

Attempting to murder Mary Morbeto on 9 March 1984.

Murdering Elinor Deckerson on 28 September 1984

Attempting to murder Isodore Schriber on 2 October 1984

Murdering Isodore Schriber on 11 October 1984

Attempting to murder Martha Moore on 27 October 1984

Murdering Martha Moore on 28 October 1984

Attempting to murder Gordon Dodson on 2 March, 3 March and 6 March 1985

A bench warrant was issued for her arrest. After her arrest she was released on bail of 15,000 dollars.

This was later raised to 40,000 dollars at the request of the Prosecution.

In March 1987 the first of several civil cases in which the plaintiffs were relatives of those patients

allegedly harmed by Ms Bolding sued her and the hospital. She was sued on the grounds that she had

"wilfully and deliberately caused the deaths". The hospital was sued on the grounds that it had failed to

conduct "an immediate and thorough investigation of an epidemic of deaths". The next development was

in September 1987 where a hearing was held about the admissibility of Ms Bolding's statements to Police

at the end of her interrogation. The account that Ms Bolding and the Police Officers in the case gave of

her interrogation were very different. The Police stated that Ms Bolding was treated kindly and was

offered coffee and food at regular intervals during her interrogation. She, they said was informed that

two lawyers visited the Police Station where she was being held and had asked to see her but she declined

to see them. She had been told of her "Miranda"60 rights after which she signed two documents which

60Miranda -v- Arizona (1966) 384 US 436. This is the case which lead to the formal reading of their rights to detained persons on their arrest in the United States. The precise formulae varies a little from State to State. In the District of Columbia the form of words used is: "You are under arrest. Before we ask you any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in court. You have the right to talk to a lawyer before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If

56

waived her rights to remain silent and her rights to speak with a lawyer. During the hearing Ms Bolding

said that she had not "bothered to read" these documents before signing them. She also said that she was

always upset in March, the month of her interrogation, because it was in March 1978 that she had been

sexually assaulted. Also that at the time she signed the document, which she claimed had been dictated

by the Police to her, in which she admitted administering potassium to Mrs Deckerson she had only had

four hours sleep in the prior 48 hours and that the large amount of coffee and cola drinks she had

consumed during her interrogation had upset her stomach, causing her considerable discomfort. She was

told that as soon as she had finished writing a letter of apology to Mrs Deckerson's relatives a cot would

be brought into the room where she was being held and she could get some sleep.

Psychiatric evidence was led by Ms Bolding's Attorneys to show that she had lost her "free will" at the

time she gave the Police a statement admitting the injection of potassium to one of her patients. However

expert evidence in rebuttal was called by the Prosecution.

At the end of the pre trial hearing, the Judge ruled that the statements could not be admitted at the trial

because "statements of the defendant were not sufficiently purged of the taint of the illegal detention and

are therefore inadmissible at the trial". In May 1988 Ms Bolding elected to be tried by a County Circuit

Court Judge rather than a jury. This would be the same Judge who had conducted the hearing relating to

the admissibility of her confession.

The trial finally opened on 18 May 1988. In the words of Keith Harrison, the Washington Post reporter

who covered the case, the Prosecution had to prove their case "without a witness, without a weapon and

without testimony from the Maryland Medical Examiner that any homicides had occurred".

The early part of the Prosecution evidence was concerned with accounts from staff of Ms Bolding's

attitude to patients in the intensive care unit, particularly her propensity to ask to be assigned into the

sickest patients. Expert evidence about increased levels of potassium found in blood samples collected

from patients who had had cardiac arrests whilst under the care of Ms Bolding was also heard, the tenor

of which was that natural disease processes could not explain either the results or the associated

unexplained cardiac arrests. The most important part of the Prosecution evidence came from Jeffrey

Sacks who had conducted the CDC study. Dr Sacks had studied cardiac arrests in the hospital between

1983 to 1985. He had found that twice as many patients had cardiac arrests between January 1984 and

March 1985 than during the rest of the period he examined. Cardiac arrests were evenly distributed

you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering until you talk to a lawyer.

57

among all three nursing shifts in the hospital's coronary care unit but were heavily skewed in the

intensive care unit where they tended to occur during the last hours of the evening shift. Ms Bolding was

the primary nurse in more than half of the 111 cardiac arrests that took place in the hospital between

January 1984 and March 1985. Cardiac arrests in patients under her care were more likely to take place

in patients who were younger and female than cardiac arrests in general in the hospital. They were more

likely to take place in the bed in the intensive care unit which was least visible from the nursing station.

Cardiac arrests in her patients were also more likely to be associated with unexplained increases in the

patient's serum potassium.

One of the points made in the defence cross examination of Dr Sacks was that his study was biased

towards identifying a nurse or nurses associated with otherwise unexplained cases of cardiac arrest

simply because better data existed from duty rotas about when a particular nurse was on duty than existed

for any other grade of staff. Dr Sacks admitted this and, when evidence was presented that a particular

Physician's Assistant who had worked with Bolding could have deliberately targeted Bolding's patients

for unauthorised injections of potassium he replied "it is not as plausible and consistent as Nurse 14

"Bolding" being the greater risk factor, but it is plausible and consistent." However despite 5 hours of

cross examination Dr Sacks did not retreat from his conclusion that Ms Bolding was the "greatest risk

factor" associated with the epidemic of cardiac arrests. Indeed, he went further than he had done in his

Evidence in Chief stating that the large number of unexplained cardiac arrests in patients with high levels

of potassium in their serum were "consistent with intentional actions".

After Dr Sacks' evidence, the Physician's Assistant identified in his cross examination as possibly being

associated with the epidemic of deaths was recalled to give further evidence. He had earlier given

evidence about how he had been suspicious about Ms Bolding's actions and had initiated the audit into

her cases which had led to her dismissal.

After Dr Sacks' evidence two other experts gave evidence about the causation of the patients cardiac

arrests, referring specifically to the probability that these cardiac arrests were caused by the

administration of potassium chloride.

After the Prosecution had presented its case, the defence submitted that there was no case to answer. The

Judge granted this submission. In granting it he said that the Prosecutors had shown that the cardiac

arrests were caused by the unauthorised administration of potassium chloride and that Ms Bolding was

the most significant risk factor among the patients who had had cardiac arrests. He went on to say "the

58

State has at most placed her at the scene of the offences, but that is insufficient to sustain a conviction.

The State's reach hopelessly exceeded it grasp." In short, once Ms Bolding's "confession" had been ruled

to be inadmissible the only evidence against her was circumstantial and the case fell.

After Ms Bolding's acquittal she had to face a total of eight "wrongful deaths" lawsuits. These lawsuits,

for a total of 8½ million dollars, were settled out of Court without the terms of the settlement being

disclosed in July 1989.

Ms Bolding was reported in 1989 to be working as a claims analyst for a insurance company.

59

60

Chapter 5

The Methods of Inflicting Harm to Patients and Those Who Use Them.

The methods used by healthcare workers who systematically harm their patients can be classified into 3

groups:

Physical methods

Interference with equipment

Inappropriate administration of drugs

Physical Methods

Although many of the parents or informal carers who deliberately induce disease in their children,

producing the so called "Munchausen's by Proxy Syndrome" or "Meadows' Syndrome" 61,62, often use

physical methods or household chemicals to induce symptoms in their children or in children under their

care, this method is less common in trained health care workers who systematically harm patients in

hospital. It has been suggested that at least some cases where health care workers systematically harm

their patients represent a variant of the Munchausen's by proxy syndrome 63, 64 and one of the features of

61Meadow R. " Munchausen Syndrome by Proxy-The Hinterland of Child Abuse" Lancet 1977;2:343-345. The mother of Professor Meadow's index case was a nurse.

62Yorker B C, Kahan B B. "The Munchausen Syndrome by Proxy variant of child abuse in the Family Courts. Juvenile & Family Court Journal 1991 Chapter 5, 51-58.

63Yorker B C. Nurses accused of murder. American Journal of Nursing 1988; 1327-1332.

64Holzberg B. A nurse who said he just wanted to be a hero. National Law Journal 20 November 1989 p 8. Richard Angelo, the Los Angeles ICU nurse referred had been found guilty of killing patients by injected them with large does of lignocaine. This would induce fitting and heart failure. His motive was that he wanted to be a hero. A typical example of Munchausen's by proxy.

51

the Munchausen by proxy syndrome is that a relatively high proportion of the mothers involved had some

of form of nursing training. (Mothers, rather than fathers, are commonly the active agent in this

syndrome). Amongst the methods that have been used by mothers of hospitalised children to produce

syndromes in their children have been:

Partial suffocation, usually with a pillow. Usually this is inflicted upon a child who has not developed

the power of speech. The active agent places a pillow over the child's face until the child has a hypoxic

fit the pillow is then placed in its normal position and a nurse summoned. The mode of detection of this

particular technique is the installation of video surveillance in the child's room. Another method of partial

suffocation which has been described at meetings is to gently place cling film over a sleeping child's

face. This can be rapidly removed and concealed when the desired degree of suffocation had been

induced.

A variety of other physical methods for the induction of symptoms may be used in the child. These

include pricking the urethra of the female child with a needle and many other techniques of a similar

nature limited only by the intelligence or imagination of the active agent. 65 The detection of these

methods depends on the clinical staff caring for the patient being technically competent and considering

Munchausen's by proxy syndrome in the differential diagnosis. 66 The administration of non

pharmaceutical chemicals to the patient in the Munchausen's by proxy syndrome is not uncommon. In

one of my own cases 67 the mother of a 14 month child was systematically administering slug pellets

containing metaldehyde to the child. This came to light when a Ward Sister became suspicious that the

child's mother was involved in the generation of the child's symptoms, which including fitting and

gastritis. The Ward Sister, being unable to convince the medical staff, herself submitted samples of

vomit and urine to the laboratory with a request that toxicological examination be carried out. On

screening the child's urine for alcohol high concentrations of acetaldehyde were found. Acetaldehyde is a

break down product of metaldehyde. Coincidentally, I had some months earlier discussed management

of metaldehyde poisoning with a veterinary surgeon who was caring for a dog that had swallowed a large

amount of slug pellets, metaldehyde being the active ingredient of most slug pellets. This is not an

uncommon problem in veterinary practice. The possibility that the child was been administered

65Meadow R. Munchausen Syndrome by Proxy. British Medical Journal 1989; 229: 248-250.

66Meadow R "Management of Munchausen Syndrome by Proxy." Archives of Disease in Childhood 1985; 60: 385-393

67R -v- Fearn. Sheffield Crown Court 1991 (Unreported).

52

metaldehyde was thus raised. The mother was sleeping in the hospital to be near her child. A search of

her room was initiated by hospital staff and a packet of slug pullets was found hidden behind a radiator.

Whilst these methods are available to hospital staff they do seem to be little used probably because other

methods are available. One physical method which has been used by health care staff is the deliberate

injection of air into the patient. In fact, despite what seems to be the usual popular opinion, a

considerable amount of air has to be injected into an adult's venous system before a fatal result is

produced. Certainly the standard syringe which would be used for injections on a ward would not contain

sufficient air to kill most adult patients if it were to be injected intravenously. However it would be

possible to kill a child in this way. Establishing causation may well be difficult in such cases; unless the

possibility that an injection of air has been raised and the pathologist carrying out the post mortem

examination is alert to the possibility that this was the cause of death the process of dissection of the

thorax viscera may, of itself, induce air into the lungs and heart. Special techniques have to be used to

convincingly demonstrate the injection of air into the patient. If there is a significant delay between

death and post mortem examination, the processes of putrefaction may of themselves produce gas in the

vascular spaces, thus confounding the issue. It would be virtually impossible to say whether or not the

cause of death was injection of air at a second post mortem examination.

Interference with equipment

This is certainly a method which has been used by some health care workers who have systematically

harmed patients. Interference with equipment became an issue during the latter stages of the epidemic

period, in which Genene Jones was implicated, at the San Antonio Medical Centre. The response of staff

was to take actions such as taping critical switches on equipment into position so that they could not

easily be altered and to insist on documented checks of equipment settings at the beginning and end of

every nursing shift.

In intensive care units there is a mass of opportunity for the knowledgeable person to interfere with

equipment in more or less subtle ways to the detriment of the patient. This interference can be

compounded by the occasional practice of disabling the alarm systems on equipment such as ventilators.

Interference with equipment may not necessarily cause the immediate demise of the patient and thus,

once again, Prosecutors may face difficulty in proving a causal link between the action of a particular

individual and the subsequent death of a patient who is likely, by the very fact of being in an intensive

care unit, to already be extremely ill. This was the problem that Prosecutors faced in the "Angel of

53

Death" case in Las Vegas where a nurse was accused with tampering with ventilators 68,69. The alleged

motive was that nurses in the intensive care unit had started making bets on the times of patients deaths.

The form of the betting appears to have been a type of sweepstake where each participant bought a share

by placing money into an envelope and was assigned the name of a patient. The holder of the name of

the patient who died first scooped the pool. The implicated nurse Ms Jani Adams and her friend started

winning more often than could be attributed to chance. Whilst up to six cases were investigated Ms

Adams was only indicted by the Grand Jury in one case, that of the death of a Mr Fraser. The indictment

was dismissed by a hearing before a Judge who ruled that "the cause of Mr Fraser's death by the criminal

agency of another and not from natural causes was not established to a reasonable degree of medical

probability". The fact that Ms Adam's Attorney was Melvin Belli, a charismatic defence lawyer and part

time actor,70 who orchestrated a vigorous extra-curial campaign with the help of nursing organisations

may not have been entirely coincidental in the defence's success at securing the dismissal of the charge

against Ms Adams.

Clearly, interference with ventilators and other "life support" equipment in intensive care units can be a

difficult matter to pin down. Much can be done by the positive design of equipment so that it "fails safe".

However, such equipment can be difficult to use, particularly when pushed to the limits of its design

envelope. It is thus particularly unpopular with medical staff.

Drugs

Of all the drugs which might be used to harm patients in hospital, intravenous potassium chloride is most

likely to cause investigators and Prosecutors difficulty in establishing the cause of death. Intravenous

potassium has, until the relatively recent past, been commonly available on wards in ampoules containing

20 millimoles of potassium in 20 millilitres of sterile water. This is equivalent to 1.5 grams of potassium

chloride in 20 millilitres of water. (For potassium and other univalent ions, one millimole is equivalent

to 1 milli-equivalent. Jane Bolding's "confession" referred to the injection of 20 milli-equivalents of

potassium). The lethal effect of potassium chloride when given by rapid intravenous infusion is well

documented. So called cardioplegic solutions are used in cardio thoracic surgery to stop the beating of

the heart and produce suitable conditions for operating once a patient is on cardio pulmonary by-pass.

68Kalisch PA, Kalisch BJ, Livesay E. The "Angel of Death". Nursing Forum 1980; XIX: 213-241.

69Kalisch B J, Kalisch P A & Livesay E. When are Nurses Accused of Murder: the melodramatic effect of media coverage. Nursing Life 1982; 2(5): 45-47.

70Melvin Belli, apart from being the Advocate in a number of high profile trials, for example that of Pattie Hurst, also appeared as a villain in an early episode of "Startrek".

54

These solutions contain high concentrations of potassium chloride. The use of potassium chloride

solutions features in fiction. For example, in the novel "The House of God" 71 the narrator, a intern in a

Boston (Massachusetts) Teaching Hospital kills a patient by the injection of potassium chloride, the

ostensible reason being euthanasia. In the film "The Hospital"72 the Director of Medicine of a New York

Teaching Hospital, faced with a situation where a sequence of mysterious deaths are occurring amongst

hospital staff, these deaths in fact being procured by a medically qualified patient manipulating the

operation of the hospital so that with a little assistance fatal procedures are carried out on staff members,

and the failure of his marriage is about to kill himself by the injection of potassium chloride. A nurse,

played by Diana Rigg enters his office where he is about to give himself the fatal injection and offers him

some rather concrete reasons for continuing to live.

Potassium chloride is not uncommonly used for suicide by medical practitioners. I have investigated two

such cases. In each case the practitioner concerned filled a 20 millilitre syringe with potassium chloride

solution containing 20 millimoles of potassium and injected it intravenously. On both occasions a

substantial amount of potassium chloride solution remained in the syringe which was found with the

attached needle still in place in a vein in the crook of the deceased's left forearm. Rapid injection of

potassium chloride solution in a concentration of 1 millimole per millilitre produces virtually

instantaneous cessation of the beating of the heart. Consciousness may persist for up to a minute also

after this has happened but thereafter death rapidly supervenes. At one time veterinary surgeons used

potassium chloride solutions for the euthanasia of companion animals. It is no longer used in this

application because of the clinical impression that the animals may suffer some pain at the site of the

injection and some cardiac pain before death takes place. Barbiturate solutions are now used.

In those jurisdictions in North America where capital punishment is administered by lethal injection the

usual procedure is to establish an intravenous infusion and then to administer in sequence three drugs

firstly, a solution of barbiturates to induce unconsciousness followed by Succinylcholine to paralyse the

muscles, including the muscles of respiration, and potassium chloride to suppress the beating of the heart.

Dr J Kevorkian the retired pathologist who has exploited a loophole relating to the legality of assisting

suicide in Michigan uses potassium chloride in his "thanatron". 73 He sets up an intravenous infusion of

harmless saline. The subject then pushes a button on the machine that first changes the infusion of saline

71Shem S. The House of God. 1979 London: Bodley Head.

72Hospital, The. Director Arthur Miller, Producer Howard Gottfried, Screeplay Paddy Chayefsky. George C Scott & Diana Rigg. United Artists, 1971, 103 minutes.

73Gibbs N. Dr Death's suicide machine. Time June 18, 1990; 25:72-73.

55

for a barbiturate solution which induces unconsciousness followed by potassium chloride to induce

cardiac arrest.

The lethal nature of the rapid injection of potassium chloride solutions is thus not in doubt. For this

reason and to avoid accidents there has been a trend away from keeping stocks of potassium chloride

solution in the form of ampoules containing 20 millimoles of potassium chloride in 20 millilitres of

sterile water at ward level. The sort of accident that has taken place has been when intravenous

antibiotics have been made up on the ward using potassium chloride solution instead of sterile water. In

addition, if the standard intravenous bag of physiological saline is hanging suspended from its hook and

potassium chloride solution is added gently through the additive port at the bottom of the bag, the

potassium chloride solution, being significantly denser that the physiological saline solution, will remain

in a concentrated layer at the bottom of the bag unless the bag is mixed. This property can both lead to

accidental potassium chloride poisoning and be exploited by the knowledgeable person who might wish

to harm a patient. Usually, on medical and surgical wards, potassium chloride solutions now come ready

diluted in physiological saline such that 20 millimoles of potassium chloride is diluted in a 500 millilitre

bag of saline. It is difficult to kill a person by infusion of this volume of fluid in any practical length of

time. However, intensive care units may have to infuse high concentrations of potassium into over a

short period of time and thus ampoules of potassium chloride solution may still be found on such wards.

The problem with the post mortem identification of potassium chloride is that while the concentration of

potassium in serum is of the order of 4 millimoles per litre in life, inside cells the concentration of

potassium is of the order of 120 millimoles per litre. The ability of the cell membrane to maintain this

concentration gradient ceases on death and potassium immediately starts to leak out of the cells. The

concentration of potassium in the plasma after death starts to rise within minutes. Even where death has

taken place after inadvertent injection of potassium chloride, this has been recognised immediately and,

after the failure of attempts at resuscitation, a blood sample has been obtained by cardiac puncture there

may be no significant difference in the concentration of potassium in the serum at that time compared to

the concentration of potassium in the post mortem serum of a subject who has died other than from the

injection of potassium chloride when the blood sample is collected immediately after death. If a sample

can be obtained within a few hours of death, the potassium concentration in the vitreous humour, (the

fluid within the eyeball) may have a higher than expected concentration of potassium, but as the

concentration of potassium in this protected fluid space rises after death, albeit rather more slowly than in

blood, this test is of limited value.74

74Forrest ARW, Clark JC Death Associated with Slow-K Overdose. Bulletin of the International Association of Forensic Toxicologists 1984; 17: 3, 5-6

56

In R -v- Lodwig,75,76 Dr Lodwig was charged with the murder of a patient at the Royal Berkshire Hospital.

It was alleged that he had intravenously injected the patient with a mixture of lignocaine (a local

anaesthetic) and potassium chloride. The Defence would have presented evidence at his trial to the effect

that his intention was to relieve pain and that whilst at Medical School (St Bartholomew's Hospital

Medical College) Dr Lodwig had heard it suggested in a lecture that research was going on in to the use

of infusions of potassium and lignocaine to relieve pain. That may be so, but I have been unable to

locate any references in the scientific literature to the publication of research suggesting this might be an

efficacious treatment for pain. The Lancet report of the case suggests (ref 16) that before the trial started

the toxicologist , Dr P Toseland, withdrew his statement in which he had apparently stated that his

findings were consistent with the injection of excessive amounts of potassium chloride. At the meeting of

the International Association of Forensic Toxicologists in Glasgow in 1989 Dr Toseland presented a

paper in which he suggested increased concentrations of chloride in the vitreous humour (the fluid in the

eye ball) were an indicator of potassium chloride injection. This paper did not appear in the proceedings

of the meeting when they were published in 1992. 77 Since normal vitreous humour contains a

significantly higher concentration of chloride ions than does serum this technique is unlikely to be a valid

one.

There is thus no reliable way of directly determining that large amounts of potassium chloride have been

injected into a patient by examination of samples obtained at post mortem examination. It may be that

examination of syringes or other medical equipment found at the scene shows high concentrations of

potassium chloride. In one case of accidental injection of potassium chloride I investigated high

concentrations of potassium chloride were found in antibiotic vials and a syringe in a "burn bin" in the

treatment room where the injection of antibiotic had apparently wrongly been prepared by dilution with

potassium chloride solution instead of with sterile water. In cases where potassium chloride has been

injected deliberately into the patient the closest one may be able to get to demonstrating that this has

been done, after death, is by showing that high concentrations of potassium chloride are present in

syringes or other infusion equipment known to have been connected to the patient. Fingerprint or other

evidence may then used to link that equipment to a particular individual. If the patient is resuscitated

from the cardiac arrest, blood samples taken during the resuscitation may show very high concentrations

of plasma potassium, as was the case in some of Ms Bolding's patients.

75Brahams D. Doctor cleared of murder of cancer patient. Lancet 1990; 335:718.

76R -v- Lodwig TLR 16 March 1990 p3.

77Oliver J S. Forensic Toxicology - Proceedings of the twenty sixth international meeting of the International Association of Forensic Toxicologists. Edinburgh: Scottish Academic Press, 1992.

57

Insulin has been implicated as the drug used in several cases of hospital killings. Injection of large

amounts of insulin does not produce "instant death". Rather the patient will progressively become

confused and unconscious as the blood glucose drops. Eventually death may supervene but this can be

preceded by a long period of unconsciousness. Unfortunately if the patient is retrieved by appropriate

treatment during the later stages of the period of unconsciousness they may suffer substantial brain

damage.

The technology of identifying whether or not insulin has been injected into a patient has improved

significantly in recent times. When insulin is synthesised in the pancreas it first is found in the beta cell

of the pancreas as pro-insulin. Prior to secretion the pro-insulin is converted to insulin by splitting off a

fragment known as C-Peptide. Insulin and C-peptide are secreted from the pancreas in equal amounts.

Thus if a patient has a low blood glucose produced as a result of a secretion of an excessive amount of

insulin, for example by a pancreatic tumour, then both insulin and C-Peptide will be elevated. If the low

blood glucose is due to injection of insulin then the blood glucose concentration will be low, the insulin

concentration will be high and the C-Peptide concentration will be low. It is now much easier to measure

both insulin and C-Peptide in tissue samples, for example, from injection sites and from control sites

where it is not suspected that an injection has been given. Thus the post mortem investigation of insulin

overdose is rather more straight forward than it has been in the past. However, the clinical suspicion that

an overdose of insulin has been given still has to be raised for these investigations can be carried out. If

the autopsy is carried out by a general rather than a forensic pathologist, inappropriate samples may be

taken which can make the investigation very difficult 78, 79.

Most of the other drugs which can be found in an intensive care unit or on a hospital ward can be

detected in tissue and biological fluids without too much difficulty once the possibility that they might be

present has been raised. However, the identification of some drugs, which may be found in intensive care

units is more difficult than others and can lead to issues relating to the validity of the assays being raised

in Court. This is particularly likely to be the case when new drugs are introduced. Whilst many common

drugs such as morphine, heroin, digoxin or lignocaine, which have been used by healthcare workers to

harm patients would be detected on a routine toxicological analysis where there was no special request

78HMA -v- Stewart 1990 (Unreported). Stewart had an argument with his consort. She took an overdose of paracetamol. Two hours later she re-entered the living room and said to Stewart; "These are no good, I'm not dead yet". Stewart, a diabetic, was alleged to have replied "Try some of my insulin then, you silly cow". What happened after that was disputed, at least one witness claiming Stewart had assisted his consort in injecting herself with insulin. The consort was found dead the following morning. The autopsy was carried out by a pathologist who, whilst experienced ,was not formally trained in forensic pathology. Sample collection and preservation less than optimal. Considerable difficulty was experienced in the interpretation of the results obtained on analysis of the samples submitted. Stewart was initially charged with Culpable Homicide. At his trial the Crown accepted a plea of guilty to a lesser charge.

79Forrest ARW "Sample Collection at Post Mortem Examination for Toxicological and Biochemical Analyses". Journal of Clinical Pathology (In Press)

58

made to focus on exotic drugs, a number of drugs found on intensive care units would not be picked up,

such as the muscle relaxants succinylcholine (used by Genene Jones), pancuronium (allegedly used by

Perez & Narcisco) or the potent analgesic fentanyl. Fentanyl has not, to my knowledge been used in this

context. As always, the laboratory has to be given full details of the circumstances of the death if the

appropriate analyses are to be carried out on the limited material available. As stated above, the only way

to detect the administration of large doses of potassium may be by the examination of the infusion

equipment or needle and syringe used to administer it. Investigators should be aware of this and should

make arrangements to take possession of all the "Burn-bins" and other receptacles for clinical waste on

the unit where the suspicious death has taken place if the investigation is initiated before they are

disposed of. Much of this equipment will be potentially contaminated with infected material and both

investigators and the scene and laboratory staff should be aware of this and take appropriate precautions.

To some extent the nature of the drugs used is likely to depend on the motivation of the individual using

them. Where there is an element of Munchausen by Proxy Syndrome, the person administering the drugs

will usually wish to observe the results and to participate in the attempted resuscitation of the patient.

However if the motive is merely to cause the death of particular patients then methods which lead to the

death of the patient after the person who has arranged for the administration of the drugs has gone off

duty may be used. This would tend to confound any criminal or epidemiological investigation. For

example, injection of Digoxin such as was implicated in the epidemic period at Toronto Children's

Hospital may not produce immediate effects and, if done towards the end of a shift may not cause the

patient to become demonstrably much sicker until well after the new nursing shift has started. Similarly

if potassium chloride is added to an intravenous infusion gently, so that it remains in a dense layer at the

bottom of the infusion bag, it may be possible to arrange matters so that the infusion rate is not speeded

up until the person who added the potassium to the bag has gone off duty. Knowledge of the type of drug

used and its effects may thus give some guidance to investigators who are trying to build up a profile of

the type of person who is the active agent in causing a cluster of unexpected deaths.

59

Chapter 6

The nature of Evidence

The word evidence is derived from the Latin verb video - to see. By conjunction with ex ( meaning

"from" or "out of") the Latin adjective evidens was formed meaning "clear" or "plain", as in "evidentior

causa victoriae".80 Evidence, in common usage could be taken to mean that which makes thing clear or

obvious. In legal terms, it means that which can be used to prove or disprove any particular fact or

conclusion. That is the data, or material from which data can be derived, which is placed before the

Court to prove or disprove the facts at issue.

There are three main types of evidence:

Oral testimony. In practice, in English law this means verbal evidence given in Court by a person who

has taken an oath or an affirmation which he considers to be binding upon him to tell the truth. One

exception may be the evidence in Court of young children. In some jurisdictions in the United States the

defendant may make an unsworn allocution after conviction but before sentencing in which he has the

right to offer additional evidence in mitigation of sentence which was not presented as sworn evidence

earlier in the trial. Defendant's in England & Wales also have this right. 81

Real evidence, that is exhibits (known as "productions" in Scots Law).

Documentary evidence.82

A great deal of the evidence in cases such as those I have described, where a healthcare worker is brought

to Court on a charge of homicide, attempted homicide or assault, is likely to be of a special nature. Much

80Clearly the reason for the victories - Livy.

81Criminal Justice Act 1982 section 72(2).

82 See Criminal Justice Act 1988 Part II (sections 23-28 and Schedule 2).

60

will be expert evidence, of which some will be epidemiological in nature. Expert Evidence is discussed in

Chapter 7. Today, much of the data on which the epidemiological evidence is based is likely to have been

extracted from computer data bases in which the duty rota of nursing and other staff is recorded.

Epidemiological evidence, by its very nature, may be regarded as a sub-set of "similar fact" evidence.

The special problems created by the admission of statistical and epidemiological evidence are discussed

in Chapter 8. There may be the question of the admissibility of hear-say evidence when the detained

person has made an admission against his or her interests whilst in custody. This type of evidence is dealt

with in Chapter 9.

Any evidence may be placed before the Court if it is lawful to do so. Whether or not the evidence is

admissible in a jury trial is a matter for the Judge to decide, usually in the absence of the jury, often in

the form of a trial within a trial or "voir-dire". 83 In general evidence is admissible which is relevant to

the facts before the Court and which tends to be probative of those facts rather than merely prejudicial to

the defendant. Common law allowed the Judge to exclude even relevant evidence if it was likely to be

prejudicial to the defendant. This has now given the force of statute 84.

83Norman French: "To Speak the Truth"

84Police and Criminal Evidence Act 1984 s 78.

61

Chapter 7

Expert evidence

In general, whilst evidence of fact is admissible in criminal trials, evidence of opinion is not. That is a

matter for the jury. For example if A sees B shoot C who instantly dies he can say in Court "I saw B

shoot C". He cannot say "I saw B kill C". Whether or not A killed B is for the jury to decide. There are

some exceptions, in the case of non experts, to this general rule. For example someone can say that they

were unwell, a matter of opinion, at a particular time or they can use a form of words which constitutes

an opinion if the matter is too vague to be described any other way as in, for example, "I saw a speeding

car". There is also a statutory exception where non expert evidence can be admitted. That is to address

the question as to whether or not handwriting is that of a particular individual. 85 See the Criminal

Procedure Act 1865 s8 :

"Comparison of a disputed writing with any writing proved to the satisfaction of the Judge

to be genuine shall be permitted to made by witnesses ...... the evidence ......may be

submitted to the Court and jury as evidence of the genuiness or otherwise of the writing in

dispute."

In the type of case under consideration the question of who wrote a particular entry in the medical or

nursing notes could well be a point at issue. It is likely that, today, the Court would be assisted by the

opinion of an Expert Witness or Witnesses.

Expert Witnesses are able to give opinions where the Court requires such evidence. In general this is

where the subject under consideration is not one where the ability to form an opinion from the facts is a

matter of common knowledge but where the ability to form an such opinion is a capability that can only

be confirmed by experience or study. The case law in this matter goes back to Folkes -v- Chadd in 1782.

86 The matter in this case was concerning questions of liability after a harbour had silted up. Lord

85Criminal Procedure Act 1865 s.8:

86Folkes -v- Chadd (1782) 3 Doug. 157 & ER 589.

62

Mansfield the Presiding Judge said: "in questions of science no other witnesses can be called", that is no

witnesses other than those who have acquired special expertise by virtue of training or experience.

However the use of Expert Witnesses goes back much further in English Criminal Law. For example,

when a woman was sentenced to death she could plead pregnancy in bar of execution. The Judge would

then direct a panel of 12 married women "de circumstantibus" (which might roughly be translated; "who

happened to be around") to try "whether the prisoner be with child of a quick child or not." If she was

pregnant with a foetus that had quickened then she would be reprieved until after her confinement. 87

Similarly, a writ of "ventre inspiciendo" could be sought by an heir who would be dispossessed if a man's

widow were to be pregnant at the time of his death. The effect of the writ was that the unfortunate

woman would have to undergo an examination by the Sheriff of the County with the assistance of 12

matrons and 12 respectable men. A rough translation of the writ addressed to the Sheriff would be: " in

your person approach the respondent and by looking, diligently examining and touching her breasts and

belly by all the means which can best do so determine whether or not she be pregnant." 88 At the trial of

the Earl of Pembroke89 in 1678 both the Prosecution and the Defence called experts, physicians who gave

evidence as to the symptoms that would result from the conditions they had discovered at post mortem

examination. However, it is clear that Expert Witnesses were the exception rather than the rule in

English Criminal Trials before the sixteenth century, when in Buckley -v- Rice Thomas, the learned

judge's dicta was "If matters arise in our law which concerns other sciences or faculties, we commonly

apply for the aid of that science or faculty which it concerns, which is an honourable and commendable

thing in our law" 90. Then as now, the function of the expert was not to decide the case, but to assist the

Court in its deliberations 91.

Civil law jurisdictions have always been more disposed towards expert evidence given by court appointed

experts than have common law jurisdictions. After the Lateran Council of 1225 had effectively prohibited

trial by ordeal, by excluding the clergy from such proceedings, new methods of establishing the guilt (or

innocence) of the accused in criminal trials had to be established. In continental Europe, Roman law was

taken as the model and an inquisitoral procedure developed. This was not the case in Britain where

roving Judges heard cases with the evidence being presented in adversarial form. The principle court

87Taylor AS. Medical Jurisprudence. 7th Ed. London: John Churchill, 1861.

88In propria person tua accedas ad praefatam R et eam coram praefatis videre et diligenter examinari et tractari facias per ubera et ventrem omnibus modis quibus melius certiorari poteris utrum impregnata sit necne."

89R -v- Pembroke (1678) 6 How.St.Tr. 1337.

90Buckley -v- Rice Thomas (1554) 1 Plowd. 118.

91Davie-v-Edinburgh Magistrates [1953] SLT 54.

63

with an inquisitorial procedure having jurisdiction over criminal matters in England was the Star

Chamber. This proved to be a potent instrument of oppression in the hands of successive monarchs. The

Star Chamber was abolished by an act of the Long Parliament in 1641. Memories of the abuses

perpetrated by the Star Chamber have coloured the views of the those who practice law in common law

jurisdictions since its dissolution. For example much of the protection accorded to citizens of the United

States by the Bill of Rights 92 are designed to protect citizens against the type of oppressive inquisitorial

proceedings which characterised the Star Chamber during the latter period of its existence.

One of the few Courts in England & Wales where the proceedings are inquisitorial rather than adversarial

are the Coroner's Courts. However, the Coroner's Courts can no longer be considered part of the Criminal

Justice System since the Coroner no longer has the power to commit a person to the Crown Court where a

verdict of murder or manslaughter is returned at an Inquest. 93 Murder or manslaughter are no longer

verdicts available to the Coroner. However, the Coroner must halt an Inquest and pass the papers in the

case to the Director of Public Prosecutions if he feels that the evidence he has heard is such that the death

of the person which is the subject of the inquest might have been caused by an offence of murder,

manslaughter, infanticide, causing death by dangerous driving94 or by assisting 95 a person to kill

themselves. 96 It is not too difficult to imagine a scenario where an inquest is underway into the death of a

person which may have formed part of a cluster of suspicious deaths in hospital, where the DPP has

indicated that he does not intend to initiate a prosecution , in which evidence comes to light which

persuades the Coroner that he should adjourn the Inquest and pass the papers to the DPP. 97 The Inquest

thus forms a safety net in helping to ensure that no case that should be prosecuted is missed.

92 The Bill of Rights (1791) takes the form of 10 amendments to the original US Constitution of 1787. The 7th amendment ensures that the common law continues to be the source of law in the United States, which makes it very unlikely that any form of inquisitorial proceedings would develop there. Although, Rule 706 of the Federal Rules of Evidence allows the appointment of neutral experts by the Court, such appointments are, in practice, extremely rare outwith Federal cases dealing the Law of the Sea.

93Criminal Law Act 1977. Section 56(1) abrogates the Coroner's residual criminal jurisdiction.

94 Road Traffic Act 1991 s1 & s3A

95Suicide Act 1961 s2(1)

96Coroners Rules 1984 r 28-1.

97If the DPP has not indicated that he does not intend initiate a prosecution and such evidence comes to light during the Inquest, Rule 28 implies that the Coroner must adjourn and pass the papers to the DPP. The Inquest can proceed if the DPP has said that he does not intend to initiate a prosecution. (The Inquests into the deaths of the Hillsborough Disaster victims are a good example of the operation of Rule 28). Obviously, if fresh evidence was disclosed in the course of the resumed Inquest that pointed to the death being due to homicide committed by a particular person, the Coroner would adjourn and pass the fresh evidence to the DPP.

64

Scots Law has always had a greater affinity with Civil Law than has English Law. There is an

inquisitorial element in the initial investigation of crimes in Scotland where the Police carry out the

investigation on behalf of the Procurator Fiscal, a judicial officer who determines on the basis of the

evidence he has acquired as a result of the investigation he has directed whether or not any person should

be charged with a crime. The exchange of statements and expert reports (precognitions) before trial in

Scotland is mandatory 98 and it is not uncommon for an agreed report prepared by experts from both sides

to be submitted to the Court in a criminal case. Of course, the makers of such a report may be separately

cross examined by the Prosecution and the Defence.

Unlike in the Scottish Courts, in the English Courts the defence often is able to adduce either new

scientific evidence or a report which, whilst saying nothing new, attempts to discredit the prosecution

expert evidence. Despite the inclusion of a section in the Police and Criminal evidence Act 1984 99, after

the hidden technical defence sprung on Professor Usher , the Crown Expert in R-v- Arthur, 100 whilst he

was giving evidence by George Carman QC and Professor J Emery, the production of a defence report at

the last moment is common. There is little that is more unpleasant for an Expert Witness than to be

presented at the door of the Court with a 20 page report, produced by the defence in which there is no

new material or experimental work described, but merely a collection of minor criticisms that suggest

that the author is neither familiar with the relevant literature nor has personal experience of the relevant

techniques. The effect of such tactics by the defence is to test the expert, not his evidence. The

personality and resilience of the expert under stress should not be germane to the matter before the Court.

For this and for many other reasons, I favour the exchange of Expert reports well before the trial starts, as

is mandatory in Scotland.

The scientific evidence presented in Court when a case of a health care worker who is implicated as the

cause of a cluster of unexpected deaths comes to trial may have been produced by techniques that are in

the vanguard of scientific development. In the United Kingdom there is no equivalent to the Frye test

which has governed the admission in Court of novel scientific evidence in the United States. 101 James

98The indictment has to be served on the defendant at least 30 days before the trial. It has to list all the productions and witnesses on which the Crown will rely. The defence can then apply for any witness listed to be cited to give a precognition before the Sheriff. In practice the Crown deposits the witness statements and productions with the Court to whom the defence can apply for a warrant to examine them. This examination can include their removal for examination by a defence expert. The defence has to lodge notice of any special defence (for example alibi, a "cut-throat" defence or whatever) 10 days before the Trial date. A list of defence witnesses and productions has to given no more than three days before trial commences. Criminal Procedure (Scotland) Act 1975 s81

99Police and Criminal Evidence Act 1984 s.81

100Gunn MJ, Smith JC. Arthur's case and the right to life of a Downs Syndrome child. Criminal Law Review 1985:705-715. 101Frye -v-United States., 293 F 1013 (DC Cir 1923).

65

Alfonso Frye was accused of the murder in 1920 of Dr Robert W Brown. Since the offence took place in

the District of Columbia the case was heard in a Federal Court. Before his trial Mr Frye was subjected to

a "systolic blood pressure deception test". In short to a lie detector test. The prosecution sought to have

the results of this test excluded and a voire dire was held to consider the matter. After hearing the

evidence, the trial judge excluded the evidence. On appeal, this decision was upheld. The Court gave no

precedents or justification for its decision which can be summarised by the following quotation:-

"Just when a scientific principle or discovery crosses the line between experimental and

demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential

force of the principle must be recognised, and while the courts will go a long way in

admitting expert testimony deduced from a well recognised scientific principle or

discovery, the thing from which the deduction is made must be sufficiently established to

have gained general acceptance in the particular field in which it belongs."

The court rejected the appeal. The eventual outcome was that Frye was pardoned after someone else

confessed to the crime. He died in 1953 and is buried in the Arlington National Cemetery, a privilege to

which he was entitled by virtue of his army service in World War 1. 102

A voire dire applying the Frye test will have two main elements; the determination of which field of

expertise is at issue and then determining whether or not the technique is acceptable to the majority of

those working in that field. The Frye test has some advantages and disadvantages. When the evidence

presented is at the forefront of development, very few people in the scientific community, or the relevant

sub set thereof, will be familiar with the technique. This effectively precludes its admission under Frye

rules with the effect that the test introduces a natural brake on the presentation of expert evidence using

the most novel techniques. One might regard this as no bad thing. Also when a group of workers in a

particular small field get the bit between their teeth it is possible for their enthusiasm to be such that their

technique, whilst acceptable to them, the relevant part of the scientific community, does have significant

pitfalls that they do not recognise.103 As Alldridge points out, where commercial considerations rather

than scientific endeavour is the driving force, this problem can be compounded. 104 Another problem is

102Office of Technology Assessment. Genetic Witness: forensic uses of DNA tests. Washington DC: US Government Printing Office, 1990. p95.

103Moenssens AA, Inbau FE, Starrs JE. Scientific evidence in Criminal Cases. 3rd ed..New York: The Foundation Press,1986.

104Alldridge P. Recognising novel scientific techniques: DNA as a test case. Criminal Law review 1992 :687- 98 at page 693.

66

that the Frye test concentrates on the test itself and not on whether it would yield relevant data in a

particular case. Gianelli cites the example of neutron activation analysis as applied to gun shot residues. 105

This test will detect with exquisite sensitivity traces of elements such as boron. Boran is a component of

the primer in most firearms ammunition. The Frye test would concentration on the validity of the test for

detecting boron and not on issues such as the proportion of the normal population that might have boron

on their hands or clothing, that is its relevance to the case at issue.

In the United States the alternative to the Frye test is the relevancy test, as enacted in the Federal Rules

of Evidence.106 These were originally promulgated by the Supreme Court for use in Federal Courts and

were first taken into use, after ratification by Congress, in 1975. 107 Relevancy is defined in rule 401 as:

"Evidence having any tendency to make the existence of any fact that of consequence to

the determination of the action more probable or less probable than it would be without

the evidence".

The effect of these rules is to require the Federal Courts to go through a three stage procedure in

determining the admissibility of expert evidence.108

The probative value has to be evaluated

The potential of the evidence to mislead the jury has to be identified

Finally, the probative and prejudicial weight of the evidence has to be balanced and a decision

taken as to its admissibility.

There is little or nothing in this process that would be unfamiliar to a Judge in an English criminal Court.

105Gianelli PC. The admissibility of novel scientific evidence: United States-v-Frye, a half century later. Columbia Law Review 1980; 80:1196-1250.

106The relevancy test first appears to have been applied in the United States in Coppolino-v-State 1968: 223 So.2d 68 as an "add on" the Frye test to test the relevancy of the admission of the evidence. Interestingly this case involved the detection of succinylcholine in tissue following its use for homicidal purpose. The technique used would not be acceptable today.

107Public Law 93-595.

108Gianelli PC op cit at page 1235.

67

Even in jurisdictions where the writ of the Frye rules run, judicial notice is being taking of the relevancy

tests In giving its decision in Jones,109 the Court of Appeals of Texas made the point that whilst the

GC/MS evidence for the presence of succinylcholine in Chelsea McClellan's tissues was admissible under

the Frye rules, "It would be better to determine such the admissibility of such evidence under the general

relevancy analysis." I would agree.

In R-v-Robb, an English case involving identification by phonetic analysis, the defence asked the Court

to apply what was, in effect, the Frye principle, of general acceptability in the scientific community. 110

This was rejected. The court considered that the expert was well qualified on the basis of his training,

practice and experience to identify someone by voice.

Several of those bodies who have given written evidence to the current Royal Commission on Criminal

Justice, have suggested that there should be some form of registration for experts in general or forensic

scientists in particular which would have to be accomplished before they give evidence. 111 This concept

of expert recognition is also implicit in JDJ Harvard's comment in a recent paper in discussing court

procedure in medieval Europe: "Only those experts who were recognised by the Court as competent to

give evidence were admitted, a principle which still awaits recognition at English Law". 112 Alldridge

suggests that a committee be established for the "certification of techniques and/or licensing of

exponents or laboratories" 113. Whilst this is, in practice, happening, with the accreditation of Forensic

Science Service laboratories in the UK by NEMAS and the Royal Society of Chemistry at least

speculating about the possibility of including Forensic Chemistry as a sub speciality on one of its

specialist registers114, the accreditation and registration process is not free of difficulty. It does tend to

discourage the development of novel techniques and creative work and to encourage conformity, as well

109Jones -v- State, 716 SW 2d 142 (Tex.App - Austin 1986). See particularly discussion at pages 152-154 -"Dissatisfaction with Frye"

110R-v-Robb TLR 1991. The expert in this case identified an individual from telephone calls and tape recordings by using phonetic analysis, essentially a purely cognitive proceedure, rather than by conventional voiceprinting, which uses frequency analysis and statistical matching technique. The trial Judge directed the Jury, in part, as follows; the funstion of the expert is " to provide the a court, that is you, the jury - with possible scientific reasons to allow you to form you opinion and judgement in relation to matters that you find proved to your satisfaction. Remember, No expert can usurp your function as the final arbiter of fact. He is available to assit you with his experience." To quote the Times Law Report: "Their Lordships regarded that as a sound statement of legal principle"

111For example, the Forensic Science Society.

112Harvard JDJ. Expert scientific evidence under the adversarial aystem. A travesty of justice. Journal of the Forensic Science Society 1992;32: 225-235 at page 228.

113Alldridge P op cit page 694.

114Cobb PGW, Henman BA. The Indicative Registers of the Royal Society of Chemistry. Journal of the Forensic Science Society 1991;31:191-196.

68

as increasing overhead costs.115 The example of the accreditation of laboratories for drug testing by one

international body should also be considered. The standards that have to be meet to achieve accreditation

are very high. A number of those involved in the accreditation process have been able to charge large

consultancy fees by advising laboratory directors in other countries how to meet the standards of the

accreditation body. The question of the accreditation of those working in a very small area 116 should also

be considered They could well form themselves into an exclusive little coterie, granting each other

accreditation, with the effect that the range of expertise available to the Courts was reduced, and that a

truly critical element was absent from the accreditation process with "clubability" rather than competence

been the criterion for success.

I also have some concerns about the commercial pressure on a Scientist who develops a new analytical

technique to say nothing of it in public until the patenting process is underway. This may well inhibit his

desire to assist the courts as an expert witness and inhibit the willingness of his managers to let him do

such work.

My view is that accreditation and registration are, like virtue in general, laudable and probably can be

taken as indicating that the evidence adduced by those who have the awarding body's imprimatur has

been generated by techniques broadly accepted within the scientific community. 117 However, such

accreditation or registration should not be the only factors that the Courts take into account when

considering whether or not particular expert evidence should be admitted. At present the Law is that a

man who is an expert, being the first in a field of one, can assist the Court as an expert witness. 118 Subject

to the continuation of the vigorous scrutiny that the courts can be expected to give in such a case, so that

the evidence of "quacks, charlatans and enthusiastic amateurs"119 is excluded, I would hope that the

general introduction of some form of accreditation for expert witnesses would not preclude the admission

of the expert who is "first in a field of one".

115The inhibitory effects of licensing scientists has been a theme of science fiction writers for many years. For example, see Isaac Asimov's Foundation (1942) or more recently Jerry Pournelle's Prince of Mercenaries (1989).

116Areas that have the potential for this to happen in might be thought to include DNA profiling or Drug testing in Sport?

117Accreditation can go too far. I am already a registered medical practitioner with accreditation as a pathologist, a chartered chemist and a registered analytical chemist. I really do not want to have to "prove" my expertise to yet another accrediting body to be able to continue appearing as an Expert Witness.

118R-v-Robb TLR 1991.119I have some doubts about the exclusion of "enthusiastic amateurs". Occasionally, they are more expert than the professionals and have made major contributions to knowledge. For example, Miriam Rothschild and her work on fleas.In practice an individual of her calibre would have little problem convincing a court of their expertise.

69

Chapter 8

Statistical Evidence

"Once is happenstance. Twice is coincidence. The third time it's enemy action." 120

The presentation of statistical data in Court is fraught with many difficulties as this extract from the script

of a Forensic Science Society training video shows:- 121

COUNSEL: Mr Spurt, you have described the results of blood grouping tests performed

on a swab of blood taken from the hand of the accused a short time after the offence was

committed, I understand that it had an unusual combination of groups.

WITNESS: (Mr Xenophon Spurt) Yes

COUNSEL: What was the frequency?

WITNESS: One in a thousand.

COUNSEL: Blood like that occurs with a frequency of one in a thousand? And it

matched the deceased?

WITNESS: Yes

JUDGE: Erm, Mr Spurt, that must mean mustn't it that the chances are a thousand to

one in favour of the blood having come from the deceased?

WITNESS : (After a pregnant pause) If it please you, my Lord.

120Auric Goldfinger in Ian Fleming's "Goldfinger".

121Craddock JG. Forensic Science Society Meeting, June 1992.

70

In a case where a healthcare worker is accused of systematically harming his or her patients much of the

evidence presented is likely to be of a statistical or epidemiological nature whereby an association is

demonstrated between the time when the accused was on duty and the frequency of adverse incidents

taking place in patients under his or her care compared to times when they were not on duty. The graph

below shows the type of data that might be presented in Court.

3 4 5 7 12 17 21 23

Nurse Number

0

5

10

15

20

25

30

The graph shows the risk ratio(the relative chance of one of his or her patients having a cardiac arrest

compared to the patients of other nurses) for various nurses in the Hospital where Terri Rachals worked

122. Ms Rachals is nurse 3 123 .

An excellent non mathematical account of one epidemiological approach to the problem of serial crime is

given by Kind who presents details of an analysis carried out during the final stages of the investigations

of the "Yorkshire Ripper" murders.124 This approach would be equally applicable to serial crimes taking

place in a hospital.

122Rachals -v- Georgia (1987) 184 Ga App 420.

123 Data taken from Franks A, Sacks JJ, Smith JD et al. A cluster of unexplained cardiac arrests in a surgical intensive care unit. Critical Care Medicine 1987; 15: 1075-1076.

124Kind SS. The Scientific investigation of Crime. Harrogate: Forensic Sciences Service Ltd, 1987: Chapter 15

71

The question to be considered is whether or not such evidence of "similar facts" can be put before the

Court. The leading case is that of Makin and Makin 125. In this late nineteenth century Australian case,

the Makin's ran a baby farm. After a number of children in their care had disappeared that back garden

was dug up and a number of small skeletons were found. Eventually, the remains of a total of 13 infants

were found in places where the Makin's had lived. The Makin's were charged with the murder of two of

these children. Evidence was given that one of the children named in the indictment had been adopted by

the Makins in return for a payment of £3. A sum which would not have paid his keep for long. Evidence

was given of the finding of other bodies, of some admissions against interest by the defendants and of

other adoptions in return for small sums of money by them of other children whose whereabouts could

not be established. The Makins were convicted and duly appealed to the Privy Council. They argued

evidence concerning missing children other than those named in the indictment should not have been

admitted. Their appeal failed. In giving judgement, Lord Herschell stated:

"It is undoubtedly not competent for the Prosecution to adduce evidence tending to show that the accused

has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to

the conclusion that the accused is a person likely from his criminal conduct or character to have

committed the offence for which he is being tried". He went on to say " On the other hand, the mere fact

that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if

it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether

the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut

a Defence which would otherwise be open to the accused". In other words as counsel for the Crown had

put it, the finding of the other bodies implied that the deaths were "wilful and not accidental".

Lord Herschell's two statements are but two sides of the same coin and are a reflection of the general

principle that evidence adduced must be more probative than prejudicial. The law of similar facts was

developed by the House of Lords in Boardman's case.126 Boardman was headmaster of a Language

School. He was charged with one offence of buggery and one offence of incitement to commit buggery,

his partners being under the age of twenty-one. The trial Judge directed the jury that the evidence of the

partner in the case of buggery could be taken into consideration during deliberations on the charge of

incitement to commit buggery and vice versa. On appeal, although their lordships thought it to be a

borderline case, the direction to the jury was upheld. Lord Cross said: "The question must always be

whether the similar fact evidence taken together with the other evidence would do no more than raise or

125Makin -v- A-G for New South Wales [1894] AC 57.

126DPP -v- Boardman [1975] AC 421.

72

strengthen a suspicion that the accused committed the offence with which he is charged or would point so

strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in the face of

it". Lord Salmon said: "It has, however, never been doubted that if the crime charged is committed in the

uniquely or strikingly similar manner to other crimes committed by the accused the manner in which the

crimes were committed may be evidence upon which a jury could reasonably conclude that the accused

was guilty of the crime charged. The similarity would have to be so unique or striking that common-

sense makes it inexplicable on the basis of coincidence." In other words, to be admissible "similar fact"

evidence has to be strikingly similar to evidence directly relating to crime alleged in the indictment..

Even where similar fact evidence is admissible in law, the Court has the discretion to exclude it if it is

considered to be more prejudicial than probative. The principle is that the relevance of the similar facts

has to be determined by the issues in a particular case.

As Mifield points out,127 the current position can be summarised by Sir Ralph Kilner Brown's dicta in

Butler's case. 128 Court of Appeal (Criminal Division No 5219/C/85 Times, Law Report, 24 June 1986):

1) Evidence of similar facts may be admissible in evidence, whether or not they tend to

show the commission of other offences. This may be admitted:

a) If it tends to show that the accused has committed the particular crime of which he is

charged. b) To support the identification of the accused as the man who

committed a particular crime and, in appropriate cases, in order to rebut a defence of

alibi, or c) To negative a defence of accident or

innocent conduct.

2) Admissibility is a question of law for the Judge to decide. He must in the analysis of

the proffered evidence, be satisfied that:

a) The nature and quality of the similar facts show a striking similarity or what Lord

Justice Scarman describes as being of "positive, probative value", and

127Mirfield P. Similar Facts - Makin out? Cambridge Law Journal 1987; 46(1): 83-105.

128 Mirfield gives the reference as:Court of Appeal (Criminal Division No 5219/C/85 Times, Law Report, 24 June 1986): This is the same case as that reported as R -v- Butler [1987] 84 Cr App R 12.

73

b) The evidence of a similar act goes well beyond a propensity to act in a similar

fashion.

3) Notwithstanding in an established admissibility in law the Judge in the exercise of

discretion may refuse to admit the evidence if its prejudicial effect outweighs its probative

value.

There can thus be little doubt that an English Court would be likely to admit evidence of adverse events

tending to affect the patients of a particular healthcare worker were it to hear a case such as that of

Genene Jones or Jessie McTavish. The admission of similar fact evidence in the trial of those accused of

serial crimes has been well established since Makin.129

In Genene Jones' appeal, the question of the Texas law relating "extraneous offence" evidence was

examined in considerable detail. The Court concluded that the Trial Judge had been correct in admitting

the evidence of the adverse events that affected children other than the child named in the indictment

(Chelsea McClellan) under Ms Jones care in September 1982 saying "evidence that defendant, nurse

charged with homicide by injection of Succinylcholine, had injected other children with the drug had

probative value with respect to issues of intent, motive, identity and common scheme or plan which

outweighed its prejudicial effect".

The attitude of the Texas Court can be contrasted with that of the Federal Court 130 in which Ms Perez and

Ms Narsico were tried. The Judge's charge to the Jury included the instructions: "Each charge and the

evidence pertaining to it must be considered separately. You may not consider evidence introduced as to

one count in arriving at a verdict on any other count". 131 The difference between the rule here and that in

Boardman is striking.

129R -v- Smith (1915) Cr App R 229,84. (The "Brides in the Bath." case). Smith had the habit of marrying, insuring his wife and then dispatching her by lifting her legs whilst she was taking a bath. This is a very effective method of homicide.)

130The alleged offences took place in a Veteran's Administration Hospital. The Federal Government, not the State Government, has criminal jurisdiction in such institutions.

131United States of America, Plaintiff -v- Filipina Narciso and Leonora Perez, Defendants, Criminal number 6-800884, US District Court, Eastern District of Michigan, Southern Division, 446 F. Supp, December 26 1976, at page 323.

74

The statistical analysis of similar facts, such as those in Jones' or Rachals' case would normally be

presented to the jury by an epidemiologist. It is likely that much of the data on which he would depend

in drawing his conclusions would have been recorded on a computer data base, such as a nurse

management system,132 or a Hospital Information System (HISS). For such evidence to be admitted it has

to meet criteria laid down in Sections 68 and 69 and Schedule 3, part II of the Police and Criminal

Evidence Act 1984 together with requirements laid down in Sections 23 and 24 of the Criminal Justice

Act 1988. The effect of these provisions is that the Prosecution would have to show that the records

produced by the computer had been produced when the computer was working properly and being used

properly (R -v- Minors 1989).133 In my experience, it is by no means certain that it would be possible to

show that the typical nurse management computer system in a British hospital could meet those criteria.

However, it would usually be possible to reconstruct duty rotas from other sources, such as manually kept

nursing records filed in the medical notes. Nursing records are usually kept obsessionally, and have the

great merit of being legible, which is certainly not the case with all medical notes. The nursing records

are usually avidly sought by medical experts in civil cases who wish to determine exactly what was the

particular sequence of events in the management of a particular case. Once these data have been

established, the statistical analysis can be carried out. There is some statistical evidence available, in the

literature on the natural variation in death rates in Special Care Baby Units 134. However, in general,

epidemiologists analysing CASK series have tended to use data from the affected unit for times outwith

the CASK period as the baseline for their statistical comparison.

As the example of Graham Craddock's script given on page 76 shows, statistical evidence can be

presented in Court in a very unsophisticated and potentially misleading manner way. There can be

considerable dangers in presenting statistical analyses to juries. For example in People v Collins135 the

Prosecution presented statistical evidence with the help of an expert. The facts of the case were that a

woman was robbed of her handbag. She described the robber as a female with a blond ponytail who fled

from the scene in a yellow car driven by a black man with a beard and moustache. The two defendants,

husband and wife, owned a yellow car and matched this general description. The Prosecution Expert

used the "product rule" to multiply together the chance of the combination of these various descriptive

parameters being coincident in one particular couple He derived the result that there was one couple in

132Evison N. Nursing Systems - Added value. British Journal of Hospital Computing 1992;9(7): 21-23.

133R -v- Minors 1989 1 WLR 441

134Tyson J, Schultz K, Sinclair JC & Gill G. Diurnal Variation in the quality and outcome of newborn intensive care. Journal of Pediatrics 1979; 95:277-280.

135People -v- Collins [1968] 36 ALR 3d 1176

75

twelve million who would match this description. 136 The statistical flaws in this argument are many, not

least being that the parameters cited are not independent of each other. For example, a man with a beard

is more likely to have a moustache than a man who does not have a beard. More importantly, it is

relatively easy to show that in Southern California there would have been on the order of a 40% that

another couple with such characteristics existed.137 Similar inappropriate application of statistics has been

rightly criticised following submission to the Courts of identification evidence using DNA technology.

As in Collins both the calculation of the astronomically high probability figure quoted and the population

basis from which the prior probabilities on which the statistical calculation has been based have been

challenged successfully 138, 139, 140. DNA technology could be an issue in a hospital serial killing case. For

example, if a syringe were recovered which bore the defendant's fingerprints and which contained traces

of the drug which had apparently killed a particular patient together with a small amount of blood which

could be matched by DNA typing to the deceased patient then this could provide the "smoking syringe"

evidence missing from most of these cases.

Fineburg and Kaye suggest that the appropriate statistical technique for addressing the question of

"mysterious clusters" is a Bayesian141 approach.142 The concepts involved have been well set out by

Good, who suggests that in practice, we may use Bayesian logic in everyday life more than we realise. 143 .

Be that as it may, most non-professional statisticians find the Bayesian concepts of conditional

probability counterintuitive. Epidemiologists tend to be medical practitioners before they become

statisticians. It is, I suspect, not coincidental that a Bayesian analysis of carer associated death clusters

has not yet been presented in Court. For example in Rachals Dr Franks used a c2 approach and Sacks

used a logistic regression analysis in Bolding. Dr Hauser, a sociologist, used a binomial approach with a

136(Yellow car-probability 1:10) x (man with moustache-probability 1:4) x (girl with ponytail-probability 1:10) x (blond girl-probability 1:3) x (black man with beard-probability 1:10) x (inter racial couple in car-probability 1:1000) = overall probability of 1:12000120.0012

137The proof is similar to that which demonstrates that in any group of about 40 people there is an even chance that two of them will have the same date of birth.

138Annas GJ. Setting standards for the use of DNA-typing results in the Courtroom - The state of the Art. New England Journal of Medicine 1992; 326:1641-1644

139McLeod N. English DNA evidence held inadmissible. Criminal Law Review 1991; 583-590.

140Rhein R. US courts challenge evidence from DNA finger printing. British Medical Journal 1992;305:973.

141Bayes T. An essay towards solving a problem in the doctrine of chances. Philosophical Transactions of The Royal Society of London 1763;53:370-418.

142Fienberg SE, Kaye DH. Legal and Statistical Aspects of some mysterious clusters. Journal of the Royal Statistical Society A 1991;154:61-74.

143Good IJ. Weight of Evidence and the Bayesian likelihood ratio. In: Aitken CGC, Stoney DA. The use of Statistics in Forensic Science. Chichester: Ellis Horwood Ltd, 1991:85-106.

76

Poisson correction in analysing a sequence of deaths of infants in the charge of a baby sitter which had

originally be ascribed to the Sudden Infant Death Syndrome to arrive at the odds that one baby sitter

would have three of her charges die of SIDS as 0.91x10-13 to one, which would imply that such a cluster

might be seen once every 600 years.144

My conclusion is that the presentation of statistical data in Court is likely to be difficult. Experiments

with mock juries have shown that they tend to under value statistical evidence when other evidence is

available.145 The interests of justice clearly require that the Crown disclose to the Defence the statistical

data that are to be used, the manner in which those data are to be presented and the methods which have

been used to derive conclusions from those data. Only if that information is available in good time can

the Defence hope to obtain the considered expert advice necessary to decide whether and how the

statistical evidence could be rebutted. In Collins, competent statistical advice was not available to the

Defence at the trial of First Instance with the consequence that unchallenged and misleading statistical

evidence was presented to the jury. Although the other evidence was weak, a conviction was obtained,

which was overturned on appeal.

Despite the difficulties in presenting statistical data and the conclusions derived from them in Court, in

the absence of a confession or scientific evidence, based on real evidence, linking the defendant to the

alleged crime, statistical and epidemiological evidence would form the major part of the prosecution's

evidence. It may well be that in such circumstances the Crown would choose not to proceed with the

prosecution. Where it does have other good evidence, the statistical evidence should not be over

emphasised.

144State -v- Pankow [1988] 144 Wis 2d 23..145 Kaye DH, Koehler JJ. Can Jurors understand probabilistic evidence? Journal of the Royal Statistical Society A 1991;154:75-81

77

Chapter 9

Confessions and Other Statements Against Interest.

Confession evidence may be crucial in the trial of a health care work who has been associated with serial

killings. Unless one or more of the attempts to harm a patient has been witnessed or there is sound

scientific evidence linking the suspect to the means which were used to harm a particular patient, the

only evidence that is likely to be available is circumstantial evidence. Whilst there is no reason in law not

to convict a defendant on the basis of circumstantial evidence alone, or even for the Judge to draw special

attention in his summing up to the fact that the evidence is merely circumstantial 146 it is undoubtedly

desirable that there should be corroborative evidence for the guilt of the accused. Whilst the

epidemiological evidence may convincingly place the accused at the scene, as it did in Bolding's case,

and other circumstantial evidence as to motive may be given, as it was in Jones' case, an admissible

confession would be invaluable in securing a conviction. In fact, admissible confessions or other

admissions against interest are uncommon in these cases as the table on page 80 shows. The reasons for

this may be psychological.

I have already suggested that there may be similarities in the psychological make up of those who induce

sickness in their children, the Munchausen by Proxy Syndrome (MHBP syndrome) and those involved in

Carer Associated Serial Killings (CASK syndrome).147 Meadows suggests that MHBP mothers tend to

have dominant personalities, to be intelligent and to be indifferent to the suffering they inflict on their

children, or at least to regard it of lesser importance than the gain they achieve as a result of the induction

of their child's symptomatology. If one accepts the psychological model proposed by Gudjonsonn 148 for

the mechanisms that encourage or inhibit confession during questioning, then it becomes apparent why

confession is unusual in these cases.

146McGreevy-v-DPP [1973] 1 WLR 276

147The CASK acronym is my suggestion. It is preferable to the to the obvious alternative: Carer Associated Serial Homicide (CASH).

148Gudjonsson GH. The Psychology of Interrogations, Confessions and Testimony. Chichester: John Wiley & Sons, 1992.

78

Date Jurisdiction Confession at Interview

Other Admission

Trial Result

1974 Scotland No Yes Convicted, overturned on appeal, misdirection on admission

1975 Michigan No No Conviction, overturned on appeal: prosecutorial misconduct.

1980 Nevada No No No Trial - charges dropped

1981 Ontario No No No Trial

1981 California No No Trial, found Guilty.

1982 Texas No Yes Trial, found Guilty

1984 Florida No No Guilty plea, no confession evidence heard.

1985 Maryland Yes No Pre trial hearing found confession inadmissible, no case to answer after prosecution evidence presented.

1985 Georgia Yes No Confession inadmissible, found guilty but mentally ill.

1992 England No No Trial due in early 1993. Accused is currently a patient in a Special Hospital.

Table: Confession evidence in cases of Carer Associated Serial Killings.

79

Gudjonsonn suggests that there are three facilitative factors predisposing to confession:

External pressures, such as the custodial environment and the interrogation itself.

Internal pressures to confess, or to "get it off ones chest"

Perception of proof, or the belief that there is no point in not confessing because of the other

evidence in the possession of the investigators.

Against these factors is an inhibitory factor, which is a measure of the tendency not to confess because of

the realisation of the consequences associated with confession.

One of the most potent factors in the internal pressure to confess is the perception of feelings of guilt or

remorse about the crime.149 Individuals implicated in the MHBP syndrome or the CASK syndrome, seem

to be indifferent to the suffering that their activities have caused and thus are unlikely to feel much guilt

or remorse. There may even, in the MHBP patients, be a psychological element of denial so that they do

not accept that they have done what, for example, video tape evidence might have unequivocally

demonstrated.

The high intelligence of most of those associated with CASK sequences makes it likely that they will

have a realistic view of the deficiencies in the evidence presented against them and they are thus unlikely

to feel any great pressure to confess by virtue of a false view of the overwhelming nature of the evidence

against them. Their intelligence is also likely to be associated with a lively perception of the likely

consequences of confession. Thus the inhibitory pressure on them not to confess will be high.

The only Gudjonsonn factor that is likely to be operating to encourage their confession is that of "external

pressure". That is the environment in which they find themselves after their arrest and the unpleasant

nature of the interrogation itself. Under such circumstances, techniques of questioning which emphasise

the quality of the other evidence against them are more likely to elicit a confession than are techniques

which minimise the gravity of the offence. The latter type of technique may be productive in those with a

high degree of shame or remorse about their crime, but it is unlikely to be useful in those who have

149Gudjonsson GH, Bownes I. The relationship between attribution of blame and the reasons why suspects confess during custodial interrogation. Journal of the Forensic Science Society 1992; 32: 209-213.

80

committed premeditated crimes and who have little remorse. 150 Minimisation techniques appear to have

been used in Jessie McTavish's interviews, where she claimed at her trial that she was told by the police

officers questioning her that if she admitted to the injection of insulin, the likely penalty that would be

imposed would be a small fine in the Sheriff's Court (page 27). This technique did not elicit a confession

and it was not until she was charged that she made admissions against her interest. When she came to be

charged she may well have felt that the evidence against her was such that there was no point in

continuing to deny the offence(s).

In England and Wales, the questioning of persons in police custody is governed by the Codes of Practice

issued by the Secretary of State under the provisions of Sections 66 and 67 of the Police and Criminal

Evidence Act 1984 (PACE). Whilst, perhaps, not as far reaching as the rights that are accorded to citizens

in jurisdictions where there is a Bill of Rights or other written constitutional safeguards 151, they do afford

reasonable protection to the arrested person. The Courts have been active in supressing evidence

obtained at interview where there is a taint of oppression in the manner in which it was obtained. 152

Intrinsic in the safeguards incorporated in PACE is the right of the detained person to legal advice before

and during questioning, except under exceptional circumstances. Given that any admission made by an

individual implicated in a CASK sequence is likely to be of crucial importance in the subsequent trial, it

is obviously desirable that they should take advantage of the availability of legal advice before interview

and should have a solicitor present with them during interview. If this is done it increases the probability

that any admission that is made will be admissible in Court. 153 One of the functions of the PACE Codes

of Practice is "to acheive a procedure for interogation which is conducive to the extraction of reliable

confession evidence from suspects."154 Full use should be made of them for that purpose.

When an individual is implicated by circumstantial evidence as being the active agent in a CASK

sequence, the investigators may well feel it appropriate to make use of modern surveillance equipment,

150Inbau FE, Reid JE, Buckley JP. Criminal Interrogation and Confession. 3rd ed. Baltimore: Williams & Wilkins, 1986. This textbook does advocate a rather oppressive approach to interogation. For examples, the introduction speaks with approval of "techniques such as trickery and deceit that are not only helpful but frequently indespensable in order to secure incriminating information from the guilty."(Page xix).

151Miranda -v- Arizona (1966) 384 US 436 is founded in the 5th Amendment to the US Constitution. The Fifth Amendment forms part of the Bill of Rights and states in part "No person ....... shall be compelled in any criminal case to be a witness against himself".

152R-v-Davidson [1988] Crim L R 442-445 deals with the exclusion of confession evidence where there was a suggestion of oppression.

153R-v-Barry Trussler and Another. [1988] Crim L R 446-449. The judiciary appear to have a low threshold in excercising their discretion to exclude admissions made in the absence of a solicitor when there is any suggestion that PACE rules have been breached.

154R-v-Barry Trussler and Another. [1988] Crim L R at page 449.

81

or other techniques, to catch the suspect "in the act". Evidence obtained by tricking the target of the

investigation in incriminating himself may well be admissible. Evidence obtained by the use of an agent

provocateur is not automatically excluded.155 Nor are police officers bound by PACE rules when

attempting to elicit an admission against interest from a suspect during the course of an undercover

investigation.156 In deciding whether to excercise his discretion to exclude such legally admissable

evidence, so as to ensure a fair trial, the trial judge merely has to show Wednesbury principles of

reasonableness.157 One would assume that considerations of policy would encourage trial judges to be

rather liberal in admitting evidence obtained by such means in CASK cases, given that the number of

deaths in a series would typically run into double figures.

155R-v-Sang [1980] AC 402.

156R -v- Christou; R -v- Wright. Court of Appeal (Criminal Division). Law Report; The Independent; 22 May 1992.

157Associated provincial Picture Houses-v-Wednesbury Corporation [1948] 1 KB 223

82

Chapter 10

Conclusions

Prevention

The incidence of Carer Associated Serial Killing (CASK) is so low that it is difficult for managers to

estimate how much money and other resources should be invested with the specific intention of

preventing such episodes. Investment decisions geared to the prevention of catastrophic events of low

probability are often driven by political rather than actuarial considerations. The awareness of CASK

sequences amongst both public and health care managers appears to be low at present and thus there is

little incentive to take specific measures aimed at their prevention. Many of the non specific measures

that form part of good medical and nursing practice will make it more difficult for a person who wishes

to harm patients in hospital to do so. For example, a ward pharmacy service with a daily visit to the ward

by a pharmacist to check drug prescription sheets and ward stock levels, together with protocols for the

checking of all injections by two members of staff before their administration would make it much more

difficult to divert ward drug stocks for any illicit use. Also the preparation of drugs for administration by

intravenous infusion in a central pharmacy, rather than by nursing or medical staff on the ward will not

only reduce the risk of accidents but will also reduce the probability of malfeasance. 158 The removal of

potassium chloride ampoules from ward stock, as is now happening, will also reduce the chance of

accidents and malfeasance. On intensive care units, the use of "Smart" ventilators and infusion pumps,

which cannot be simply programmed to produce a potentially harmful situation should be encouraged.

The antecedents and personality type of those who are implicated in CASK sequences are non specific.

Any attempt to select out those with a possible predisposition towards harming patients on such a basis

would eliminate many potentially valuable members of staff. However, when recruiting staff to work

with patients in the vulnerable groups ( including patients in Intensive Care, children before the facility

of speech has developed and the elderly) some consideration should be given to looking to exclude those

individuals who seem to thrive on adrenaline and live for the excitement of the cardiac arrest and those

who have a history suggestive of Munchausen Syndrome.

158None of the hospitals in which the CASK sequences described here had a Ward Pharmacy system or centralised production of intravenous injections. Nor did Grantham and Kesteven Hospital, where the CASK sequence in which lead to the charges Ms Allit faces (see page 5) have such facilities.

83

Detection

Contemporary computer systems used for nursing management, such as SASHA or CRESCENDO, 159

have the facilities to produce reports for management in which attention is drawn to any statistically

anomalous clusters of death or other cardiac arrests and their association with particular wards or staff.

Not all staff attending patients have their rosters recorded in such systems, although all nurses, in units so

equipped, and many para-medical staff, such as physiotherapists, will have their hours of duty and the

patients they work with so recorded. Internal trading in hospitals, where each Clinical Directorate charges

for its services as if it were a "Profit Centre", requires accurate tracking of the services provided to each

patient by each carer or group of carers. The financial and management data required for internal trading

does provide the opportunity for non intrusive monitoring of adverse events in high risk areas. It is then a

relatively simple task to generate reports which highlight any clusters of adverse events. Such clusters are

unlikely to reflect malfeasance in the vast majority of cases. The most useful day to day application of

such reports is likely to be as an aid to infection control. For example, if a high proportion of all the

patients cared for by a particular nurse develop infections with a particular micro-organism, it might be

deduced that that nurse should have her nose swabbed to see if she is a carrier of that micro-organism..

Investigation

Once it is discovered that a CASK sequence is in progress the objectives of senior hospital staff and

investigation police officers will overlap but may not be identical. The principle objective for the hospital

managers will be to stop the sequence to prevent any more harm to patients. After that there will be a

damage limitation exercise to minimise the harm to the hospital's reputation. The objective of the

investigating police officers, as well as "protecting life and property" will be to identify the person or

person who have injured or killed patients and to collect sufficient evidence so that they may be

prosecuted. As was the case in San Antonio, there may well be considerable incentives for hospital

managers not to inform the police, particularly if the matter does not seem to be clear cut. The

consequences for the image of the hospital if any attempt at a "cover up" were to be come public

knowledge are such that most managers would report their suspicions to the police immediately once a

reasonable degree of suspicion was entertained. In practical terms, the reporting of such suspicions

would best be done by contacting a senior police officer and frankly sharing information about the

suspicious deaths. Ringing the local police station and speaking to the desk sergeant may not be the

optimal way of initiating police involvement. As an alternative to contacting the police, informing the

159The former is used at the Northern General Hospital in Sheffield and the latter at the Royal Hallamshire Hospital.

84

Coroner (not the Coroner's Officer) or, in Scotland, the Procurator Fiscal would be likely to ensure that

the investigation was managed appropriately from an early stage.

One thing that can be expected in any hospital when there are suspicions that a CASK sequence is taking

place is that the working relationships between medical and nursing staff will deteriorate. This was a

feature of every case described in this dissertation. The relationship between the two professions has not

been an altogether easy one since before Florence Nightingale's time. 160 Trivial issues, over which the two

professions take differing views, such as the place of dilute solutions of bleach in the management of

large infected skin ulcers, can generate an inordinate amount of heat. 161, 162, 163 When a serious matter

arises which has the potential to create disharmony between the professions, and there can be little that is

more serious than a CASK sequence, then a situation may develop which is unlikely to facilitate the

investigation. Nursing staff have, in general, not been slow to report medical staff to the authorities when

they have felt that individual doctors have deliberated killed patients rather than merely applied the

treatment necessary to provide comfort and relieve pain. 164 The reaction of nursing staff in a hospital to

suggestions that a nurse or nurses are implicated in a CASK sequence often appears to be less than

constructive, with denial of the possibility that this might be conceivable 165 and claims of victimisation

being made.166 Investigators should be aware that they are likely to have to work in a contentious

environment when investigating a CASK sequence. I would suggest that, in so far as is possible given the

intense publicity that is likely to surround such cases and the advice that might be given by the Hospital's

solicitors to "say nothing", management should attempt to hold the confidence of staff by sharing with

them the reasons for the investigation and to keep them informed of its progress. This is likely to do

much to preserve moral in the unit and to help staff accept that one of their colleagues might be the

active agent in a CASK sequence. Once the initial denial of this possibility has been overcome,

information is likely to be provided which will facilitate, and thus shorten, the investigation.

160Achterberg J. Woman as Healer. London: Rider, 1991.

161Burton JL. For and against Eusol. British Medical Journal 1992; 304; 1442-1443.

162Tingle J. Eusol and the Law. Nursing Times 1990; 86: 70-72.

163Farrow S The Place of Eusol in wound management. Nursing Standard 1991; 5 (22): 25-27.

164Drs Lodwig, Arthur and Cox, British medical practitioners who have faced homicide charges of one sort or another in a context of euthanasia were all reported to the authorities by nursing staff.

165 I was not overwhelmed with the help I got from nursing organisations in preparing this dissertation. The Royal College of Nursing did not reply to a letter requesting information. The UKCC told me that they had no record of a British nurse being implicated in a CASK sequence until I provided copies of press cuttings relating to Ms McTavish's case.

166Kalisch PA, Kalisch BJ, Livesay E. The "Angel of Death". Nursing Forum 1980; XIX: 213-241.

85

Because the majority of those who have been implicated in as the active agent in a CASK sequence are

women, issues of feminist poltics and the way in which the criminal justice system deals with women

may become an issue. 167 168 This was the case in Toronto during the Nelles affair. Feminist issues are

never far below the surface in the relationship between medical practitioners and nurses 169, even today

when about 50% of doctors below the age of 30 in the United Kingdom are women.

If the investigation is precipitated by a particular case, the investigating Police Officers should take every

precaution to preserve all the evidence that might be useful. The intensive care unit, in this context

should be treated in exactly the same as any other murder scene. Obviously there are practical difficulties

in this, but at the very least nothing in the Unit at the time of the death, including clinical waste, should

be disposed of before examination. The last offices should not be carried out on the body of the deceased,

but it should be left in situ in the unit, with all monitoring, life support and infusion equipment attached

and undisturbed until they have been examined by forensic pathologists and forensic scientists. The scene

should be carefully photographed and videoed. Most forensic pathologists will not have current

experience of ITU practice, but they are likely to know practitioners from units, other than the one where

the incidence has occurred, who do have such experience. There is much to be said for inviting such an

outside expert to examine the body and equipment at the scene of the death, before the body is removed

for post mortem examination.

The method used to cause death may be of some help in narrowing the field of investigation. A method

which causes death relatively slowly, such as the injection of digoxin, might point towards a person with

an overt psychiatric illness, who wished to cause death as an end in itself. The injection of rapidly acting

drugs such as potassium or succinylcholine might point towards a person whose motive was to engage in

the high arousal activities associated with treating cardiac and respiratory arrests. The analogy with those

fire fighters who turn to arson so that they can have the thrill of fighting a fire is an apposite one.

Once the focus of the investigation is directed towards a particular person, and an arrest is imminent, the

investigators should give careful thought to the tactics to be employed in questioning the suspect. There

is a danger that their natural reaction to a series of events, such as the murder of ten or more children

could colour their actions. Nothing should be done that could compromise the admissibility in court of

any statement that the subject might make on his or her arrest or whilst in custody. The other evidence

167Smart Carol. Women, Crime and Criminology, A Feminist Critique. London: Routledge & Kegan Paul, 1977.

168Weiss M. Crimes of the head. Reason Jan 1992; 23(8): 28-33.

169Achterberg J. Woman as Healer. London: Rider, 1991.

86

against them, as discussed in chapter 6, is likely to be circumstantial and an admission would provide

invaluable corroborative evidence. In England and Wales, this means that the Codes of Practice

promulgated by the Secretary of State under Sections 66 and 67 of the Police and Criminal Evidence Act

1984 must be followed meticulously. In particular, the detained person must have access to advice from a

solicitor at an early stage. If the detained person is a nurse he or she may contact their professional

organisation for assistance. The legal advisors to such organisations will tend to be practitioners in

employment law rather than in the criminal law. In general, the best option for the detained person in

such a case would be to get advice from a criminal law practitioner. In many, but not all areas, the duty

solicitor is likely to be the most competent such person who is instantly available, unless prior

arrangements have been made. Where the knowledge of a CASK sequence is apparent before an arrest is

made, it would be prudent for the employees organisations in a hospital to make arrangements with a

criminal law practice so that if one their members were to be arrested they could have immediate access

to competent advice. It is arguable that if Ms Nelles had had access to competent legal advice

immediately after her arrest, the investigation would have rapidly been redirected towards nurse A. (See

page 15).

Prosecution

In preparing the prosecution and the defence cases, one of the major problems that the Crown Prosecution

Service and the defence solicitors will have will be the identification and recruitment of appropriate

experts. This may be particularly a problem for the defence, for the most obvious experts in drug

measurement, or epidemiology may have actively participated in the investigation and, in consequence

will be retained by the prosecution. The DNA experience, as described in chapter 7, shows that expert

evidence in the most arcane science can be successfully challenged. The problem may be to find an

expert who is qualified to do it. Getting advice from the wrong expert may be fatal to the defence case.

The defence solicitor will frequently have the experience of telephoning an expert who has been

recommended to them and being faced with an embarrassed silence followed by an admission that they

have already been consulted by the prosecution. In such circumstances, the defence solicitor may seek the

advice of one of the expert witness agencies such as Forensic Access. In practice, even if the expert they

usually employ in the relevant field has already been instructed by the prosecution, that expert will tell

the agency who else is competent in the field, this being information that they are unlikely to give

directly to the defence solicitor.

Afterword

87

CASK sequences are one of the most emotive topics in medicine practice. Most people in the caring

professions find it difficult to believe that a colleague might be capable of systematically harming

patients in their care over a prolonged period. As a result, it may be some time become an established

CASK sequence is recognised as what it is by at least some staff. Other staff who are not persuaded that a

CASK sequence is in progress may behave in a variety of ways which are disruptive of both the

investigation and of the morale of the Unit. A major task of management in a unit threatened by a CASK

sequence must be to preserve morale and to retain the goodwill and co-operation of those staff whose

initial response to the investigation and the rumours it engenders is one of denial. Many vulnerable lives

may be threatened or lost if a CASK sequence is not detected and aborted in its early stages. Mangers,

particularly Nurse Managers, must be aware of the possibility that some sequences of unexpected deaths

can be associated with malfeasance by a member of staff and should be prepared at least to consider the

possibility in appropriate circumstances.

These cases do not finish when the Trial has been completed. Press interest in those involved may

continue for many years170 and the Hospital where they worked may have its existence threatened.

Making the right decisions early in the investigation is vital to minimise the loss of life, to ensure that the

individual at the centre of the sequence is correctly identified and successfully prosecuted and to protect

the reputation of the institution involved. I hope that this dissertation may go some way towards assisting

those who find themselves in the unenviable position of having to make such decisions.

170Beacom B. Angel of Mercy who walked away from a murder charge.....Glasgow Evening Times. 1992 February 1: 6-7. An account of R-v-McTavish.

88

Table of Cases

Associated Provincial Picture Houses -v- Wednesbury Corporation [1948] 1 KB 223

Buckley -v- Rice Thomas (1554) 1 Plowd. 118

Coppolino-v-State 1968: 223 So.2d 68

Davie-v-Edinburgh Magistrates [1953] SLT 54.

DPP -v- Boardman 1975 AC 421.

Folkes -v- Chadd (1782) 3 Doug. 157 & ER 589.

Hargrave -v- Landon, 584 F. Supp 302 (DC, Va, 1984).

Her Majesty the Queen -v- Susan Nelles. Provincial Court (Criminal Division) for the Judical District of York - Metropolitan Toronto. May 21 1982.

HMA -v- MacTavish, [1974] J C 19-23.

HMA -v- McTavish, [1974] SLT 246-247.

HMA -v- McTavish, [1975] SLT 27-30.

HMA -v- Mills [1935] SLT 532. HMA -v- Mills 1935 JC 77

HMA -v- Stewart 1990 (Unreported).

Jones -v- State, 716 SW 2d 142 (Tex.App - Austin 1986)

Makin -v- A-G for New South Wales [1894] AC 57,PC.

McAdam -v- HMA. [1960] SLT 47.

McGreevy-v-DPP [1973] 1 WLR 276

Miranda -v- Arizona (1966) 384 US 436

People -v- Collins [1968] 36 ALR 3d 1176 & C.R. 66 497

R -v- Boardman (1975) AC 421.

R -v- Butler 1986 Court of Appeal (Criminal Division) No 5219/C/85, TLR 24 June 1986. [1987] 84 Cr App R 12.

R -v- Christou; R -v- Wright. Court of Appeal (Criminal Division). Law Report; The Independent; 22 May 1992.

R -v- Cox. News Report. The Independent, 11 September 1992.

R -v- Fearn. Sheffield Crown Court 1991 (Unreported).

89

R -v- Lodwig. Times Law Report 16 Apr 1990 p3.

R -v- Minors 1989 1 WLR 441

R -v- Pembroke (1678) 6 How.St.Tr. 1337.

R -v- Smith (1915) Cr App R 229,84. (The "Brides in the Bath" case).

R-v-Arthur [1985] Crim L R 705-715.

R-v-Barry Trussler and Another. [1988] Crim L R 446-449.

R-v-Boardman (1975) AC 421.

R-v-Davidson [1988] Crim L R 442-445

R-v-Robb TLR 1991.

R-v-Sang [1980] AC 402.

Rachals -v- State, 364 SE 2d 867 (GA 1988) and Rachals -v- Georgia (1987) 184 Ga App 420.

State -v- Pankow [1988] 144 Wis 2d 23.

Stirling -v- Associated Newspapers Ltd. [1960] JC 5.

Susan Nelles and others -v- Mr Justice Grange Commisioner. Appeals Division, Supreme Court of Ontario , 1984 46 OR (2d) 210

United States -v- Frye, 293 F. 1013 (DC Cir 1923).

United States of America, Plaintiff -v- Fillipina Narciso and Leonora Perez, Defendants, Criminal number 6-800884, US District Court, Eastern District of Michigan, Southern Division, 446 F. Supp, December 26 1976, p. 252.

Welsh, Petitioner, 1990, SCCR 763

90

BIBLIOGRAPHY

Achterberg J. Woman as Healer. London: Rider, 1991.

Adam H L (ed). The trial of Dr Lamson. Edinburgh : William Hodge & Co., 1913.

Aitken CGG, Stoney DA. The Use of Statistics in Forensic Science. Chichester: Ellis Horwood, 1991.

Alldridge P. Recognising novel scientific techniques: DNA as a test case. Criminal Law review 1992:687- 98

Annas G J. Setting Standards for the use of DNA-Typing Results in the Courtroom - The State of the Art. New England Journal of Medicine 1992; 326: 1641-1644.

Anon. Ann Arbor VA Nurses Freed From Charges. American Journal of Nursing. 1978 348

Anon. Euthanasia. British Medical Journal 1988; 296: 1376-1377.

Anon. Nurse murders pediatric patient. Regan Report on Nursing Law. 1986;27(6): 1.

Anon. Practicalities of Nursing [Editorial]. British Medical Journal 1971;3:545-546

Asher R. Munchausen's Syndrome. Lancet 1951; i: 339-341.

Asimov I. Foundation (1942)

Baden M. Unnatural death. New York: Ballantine Books, 1989

Bayes T. An essay towards solving a problem in the doctrine of chances. Philosophical Transactions of The Royal Society of London 1763;53:370-418.

Beacom B. Angel of Mercy who walked away from a murder charge.....Glasgow Evening Times. 1992 February 1: 6-7.

Birkinshaw VJ, Curry AS et al. Investigations in a Case of Murder by Insulin Poisoning. British Medical Journal 1958; ii:463-468.

Brahams D. Doctor cleared of murder of cancer patient. Lancet 1990; 335:718.

Briglia EJ, Davis PL, Katz M, Dal Cortivo LA. Attempted murder with Pancuronium. Journal of Forensic Sciences 1990; 35:1468-1476.

Brookfield J. Law and Probabilities. Nature 1992; 355:207-208.

Buehler JW, Smith LF, Wallace EM, Heath CW, Kusiak R & Herndon JL. Unexplained deaths in a Children's Hospital: an epidemiological assessment. New England Journal of Medicine 1985; 313: 211-216

Burton JL. For and against Eusol. British Medical Journal 1992; 304; 1442-1443.

91

Cameron of Lochbroom. False prophets and siren voices. Journal of the Forensic Science Society 1992;32: 191-208.

Cobb PGW, Henman BA. The Indicative Registers of the Royal Society of Chemistry. Journal of the Forensic Science Society 1991;31:191-196

Corey TS, Weakley-Jones B, Nichols GRH & Theuer HH. Unnatural deaths in nursing home patients. Journal of Forensic Sciences 1992;37: 222-227.

Cowsill E, Clegg J. Evidence: Law & Practice. London: Longman Practicioner Series,1990.

Creighton H. Nurses and Murder Charges. Nursing Management 1988; 19: 16-20.

Cripps Y. Negligence, causation and probability theory. Cambridge Law Journal 1987; 46(1): 389-390.

Deadly Medicine starring Veronica Hammel & Susan Ruttan, NBC TVM 1991.

Devlin P. Easing the Passing - The trial of Dr John Bodkin Adams. 1985 London: Bodley Head.

DiMaio V. SIDS or Murder? Pediatrics 1988; 81(5): 747-748.

Dyer C. SHO has murder charge dropped. British Medical Journal 1990; 300: 768-769.

Elkind P. The Death Shift.New York: Viking Books,1989. .

Evison N. Nursing Systems - Added value. British Journal of Hospital Computing 1992;9(7): 21-23.

Farrow S The Place of Eusol in wound management. Nursing Standard 1991; 5 (22): 25-27.

Fienberg SE, Kaye, DH. Legal and statistical aspects of some mysterious clusters. Journal of the Forensic Science Society 1991; 31:265-270

Fienberg SE, Kaye, DH. Legal and statistical aspects of some mysterious clusters. Journal of the Royal Statistical Society, Series A 1991; 154

Fleming I. Goldfinger.

Forney RB et al. Identification and quantitation of succinylcholine in embalmed tissue. Journal of Anal Toxicology 1982;6: 115-119.

Forrest ARW, Clark JC Death Associated with Slow-K Overdose. Bulletin of the International Association of Forensic Toxicologists 1984; 17: 3, 5-6

Forrest ARW "Sample Collection at Post Mortem Examination for Toxicological and Biochemical Analyses". Journal of Clinical Pathology (In Press)

Franks A, Sacks JJ, Smith JD et al. A cluster of unexplained cardiac arrests in a surgical intensive care unit. Critical Care Medicine 1987; 15: 1075-1076.

Gardner J F. The Wenesbury Principle. Solicitors Journal 1985; 129: 839-841.

Gianelli PC. The admissibility of novel scientific evidence: United States-v-Frye, a half century later. Columbia Law Review 1980; 80:1196-1250.

Gibbs N. Dr Death's suicide machine. Time June 18, 1990; 25:72-73.

92

Glaser F B. Doctor's role not "pivotal" in Jonestown. New England Journal of Medicine. 1979; 301: 1401.

Good IJ. Weight of Evidence and the Bayesian likelihood ratio. . In:Aitken CGG, Stoney DA. The use of Statistics in Forensic Science. Chichester: Ellis Horwood Ltd, 1991:85-106.

Good IJ. Weight of Evidence and the Bayesian likelihood ratio. In: Aitken CGC, Stoney DA. The use of Statistics in Forensic Science. Chichester: Ellis Horwood Ltd, 1991:85-106.

Gudjonsson GH, Bownes I. The relationship between attribution of blame and the reasons why suspects confess during custodial interrogation. Journal of the Forensic Science Society 1992; 32: 209-213.Gudjonsson GH. The Psychology of Interrogations, Confessions and Testimony. Chichester: John Wiley & Sons, 1992.

Gunn MJ, Smith JC. Arthur's case and the right to life of a Downs Syndrome child. Criminal Law Review 1985:705-715.

Hallworth R, Williams M. Where there's a Will...... The sensational Life of Dr John Bodkin Adams. Exeter: Capstan Press, 1983.

Harvard JDJ. Expert scientific evidence under the adversarial aystem. A travesty of justice. Journal of the Forensic Science Society 1992;32: 225-235

Heinrich K. Old age and illness - destroying the intolerable? Fortschritte der Neurologie-Pyschiatrie 1991; 59: 151-154

Hoffman RE. The use of epidemiological data in the courts. American Journal of Epidemiology 1984; 120: 190-202

Holzberg B. A nurse who said he just wanted to be a hero. National Law Journal 20 November 1989 p 8.

Hospital, The. Director Arthur Miller, Producer Howard Gottfried, Screeplay Paddy Chayefsky. George C Scott & Diana Rigg. United Artists, 1971, 103 minutes.

Inbau FE, Reid JE, Buckley JP. Criminal Interrogation and Confession. 3rd ed. Baltimore: Williams & Wilkins, 1986

Istre GR, Gustafson TL,Baron RC, Martin DL & Orlowski JP. A mysterious cluster of deaths and cardiopulmonary arrests in a pediatric intensive care unit. New England Journal of Medicine 1985;313: 205-211.

Kahan B B, Yorker B C. Munchausen Syndrome by Proxy. Journal of School Health 1990; 60(3); 108-110.

Kalisch B J, Kalisch P A & Livesay E. When are Nurses Accused of Murder: the melodramatic effect of media coverage. Nursing Life 1982; 2(5): 45-47.

Kalisch PA, Kalisch BJ, Livesay E. The "Angel of Death". Nursing Forum 1980; XIX: 213-241.

Kaye DH, Koehler JJ. Can Jurors understand probabilistic evidence? Journal of the Royal Statistical Society A 1991;154:75-81.

Kind S S . The scientific investigation of Crime. Harrogate: Forensic Science Services, 1987.371-389

Lasaga J I. Death in Jonestown: techniques of political control by a paranoid leader. Suicide & Life Threatening Behaviour 1980; 10(4): 210-213.

93

M.O.H. Report of the Committee on Senior Nursing Staffing Structure. London: HMSO, 1965.

Marchetti A G, McCartney J R. Abuse of persons with mental retardation: Characteristics of the abused, the abusers and the informers. Mental Retardation 1990; 28: 367-371.

Martin D. Nurses who murder. Nursing Standard 1989; 3(46): 18-20

May R. Criminal Evidence. 2nd Ed. London: Sweet & Maxwell, 1990

McLeod N. English DNA evidence held inadmissible. CLR 1991, 583-590.

Meadow R. " Munchausen Syndrome by Proxy-The Hinterland of Child Abuse" Lancet 1977;2:343-345.

Meadow R. Munchausen Syndrome by Proxy. British Medical Journal 1989; 229: 248-250.

Meeran R. Scientific and legal standards of proof in environmental personal injury cases. Lancet 1991; 339:671-672.

Merrillees R S. Trade and Transcendence in the Bronze Age Levant. Studies in Mediterranean Archeology 1974; XXXIX; 30-40.

Mirfield P. Similar Facts - Makin out? Cambridge Law Journal 1987; 46(1): 83-105.

Moenssens AA, Inbau FE, Starrs JE. Scientific evidence in Criminal Cases. 3rd ed..New York: The Foundation Press,1986.

Moore K, Reed D.Deadly Medicine . New York: St Martin's Press 1988.

Moore M, Reed D. Deadly Medicine. 1988 New York: St Martin's Press.

Naish J. Nurses who murder: the other side. Nursing Standard 1989; 3(46): 20-21

Newton M. Serial Slaughter. Port Townsend Wa.: Loompanic Unlimited, 1992.

Newton M. Hunting Humans - An encyclopaedia of Modern Serial Killers. Port Townsend Wa.: Loompanic Unlimited, 1990.

Office of Technology Assessment. Genetic Witness: forensic uses of DNA tests. Washington DC: US Government Printing Office, 1990.

Office of Technology Assment. Genetic Witness: forensic uses of DNA tests. Washington DC: US Government Printing Office, 1990.

Oliver J S. Forensic Toxicology - Proceedings of the twenty sixth international meeting of the International Association of Forensic Toxicologists. Edinburgh: Scottish Academic Press, 1992.

Palmer M. "The Sisterhood". ISBN 0340331879. Hodder & Stoughton 1982.

Peiris G L. Wednesbury Unreasonableness: the expanding canvas. Cambridge Law Journal 1987: 46(1); 53-82.

Platt Lord, . Ruchill Hospital murder case. The Times, 11 October 1974 p15

Pournelle J. Prince of Mercenaries. Riverdale, NY:Baen Books, (1989).

94

Pyne R H. Professional Discipline in Nursing, Midwifery and Health Visiting. 2nd ed. Oxford: Blackwell Scientific, 1992.

R-v-Butler 1986 Court of Appeal (Criminal Division) No 5219/C/85, TLR 24 June 1986.

Rhein R. US courts challenge evidence from DNA finger printing. British Medical Journal 1992;305:973.

Robertson B. Prohensity evidence to the Lords again. New Law Journal 1991. Part 1 - 27 March pp 414-416, Part 2 - 5 April pp 463-465.

Rothman K J. Sleuthing in Hospitals. New England Journal of Medicine 1985; 313: 258- 259

Sacks JJ, Stroup DF, Will ML, Harris EL, Israel E. A nurse-associated epidemic of cardic arrests in an intensive care unit. Journal of the American Medical Association 1988; 259: 689-695.

Sacks JJ, Herndon JL, Leib SH, Sorhage FE, McCaig LF, Withum DG. A cluster of unexplained deaths in a nursing home in Florida. American Journal of Public Health 1988; 78: 806-808.

Sacks JJ, Stroup DF, Will ML et al. A nurse-associated epidemic of cardiac arrests in an intensive care unit. Journal of the American Medical Association 1988;259:689-695.

Shem S. The House of God. 1979 London: Bodley Head.

Siegler R. Medical Complicity in the Guyana Tragedy. New England Journal of Medicine 1979; 301: 559.

Smart Carol. Women, Crime and Criminology, A Feminist Critique. London: Routledge & Kegan Paul, 1977.

Stevenson S (Chairman). Ruchill Hospital - A Report to the Greater Glasgow Health Board. 1975

Stross JK, Shasby DM & Harlan WR. An epidemic of mysterious cardiopulmonary arrests. New England Journal of Medicine 1976; 295:1107-1110.

Taylor AS. Medical Jurisprudence. 7th Ed. London: John Churchill, 1861.

Tingle J. Eusol and the Law. Nursing Times 1990; 86: 70-72.

Tyson J, Schultz K, Sinclair JC & Gill G. Diurnal Variation in the quality and outcome of newborn intensive care. Journal of Pediatrics 1979; 95:277-280.

Valdes R, Graves SW, Brown BA et al. Endogenous substance in newborn infants causing false positive digoxin measurements. J Pediatr 1983; 102: 947-950.

Waller D A. Obstactles to the treatment of Munchausen by proxy syndrome. Journal of the Amercian Academy of Child Psychiatry. 1983; 22: 80-85.

Weiss M. Crimes of the head. Reason Jan 1992; 23(8): 28-33.

Yalow R S, Berson SA. Immunoassay of endogenous insulin in man. Journal of Clinical Investigation 1960; 39:1157-1175.

Yorker B C, Kahan B B. "The Munchausen Syndrome by Proxy variant of child abuse in the Family Courts. Juvenile & Family Court Journal 1991 Chapter 5, 51-58.

95

Yorker B C. Nurses accused of murder. American Journal of Nursing 1988; 1327-1332.

96

97