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

2
 Dedication

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

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

3
 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.

4
 Frontispiece

Beverley Allit, from the "Sun" of 22 November 1991. Her trial is due to take place at Nottingham Crown
Court in early 1993.

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 Kingdom
Angelo, Richard Nurse United States
Archerd, William D Aide United States
Bodkin Adams, John Physician United Kingdom
Bolber, Morris Physician United States
Bolding, Jane Nurse United States
Bombeek, Cecile Nurse Belgium
Clark, Roland Physician United States
Diaz, Robert Nurse United States
Emory, Joseph Osteopath United States
Felner, Jeffrey Aide United States
Green, Anne Nurse United States
Hansson, Anders Aide Sweden
Harm, Teet Pathologist Sweden
Harvey, Donald Aide United States
Jascalevich, Mario Osteopath United States
Jones, Genine Nurse United States
Joyner, Anthony Maintenance United States
Kevorkian, Jack Pathologist United States
Kurle, Linda Nurse United States
MacGregor, John Physician United States
McTavish, Jessie Nurse Scotland
Narciso, Filipina Nurse United States
Nelles, Susan Nurse Toronto
Nesset, Arnfinn Administrator Norway
Nuss, Ralph PSW United States
Perez, Leonora Nurse United States
Petiot, Marcel Physician France
Protopapas, Tony Dentist United States
Rachals, Terri Nurse United States
Robaczynski, Mary Nurse United States
Roeder, Michaela Nurse Austria
Rudloff, Fitz Nurse Germany
Schacht, Laurence E. Physician Guyana
Shook, Anthony Nurse United States
Swango, Michael Physician United States
Waddingham, Dorothea Home Owner UK

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

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;

26
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
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.

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

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.

27
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
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

28
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
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

29
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
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.

30
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
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

31
account of Inspector Patterson, Ms McTavish had made certain admissions against her interest after she
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
a majority verdict, when at least 8 out of the 15 jurors agree.) Lord Robertson, after hearing a submission
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".

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.

32
The front page of the Scottish Daily Record of the morning after Ms McTavish's conviction

33
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
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.

Ms McTavish appealed against her conviction on the charge of murder 46. She did not appeal against her
conviction on charges of assault.

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

45Lord Platt. Ruchill Hospital murder case. The Times, 11 October 1974 p15.

46HMA -v- Mctavish 1975 SLT 27-30

34
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
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".

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

35
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
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
(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.

48Personal Communication, UKCC.

36
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
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
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
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.

37
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
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.

38
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.
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.
51This type of behaviour borders on that shown by patients suffering from Munchausen's Syndrome (see p xx)

39
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
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.

40
 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.

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
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.

41
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.

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

42
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
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

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).

43
"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.

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.

57Hearsay evidence, admissible in common law as it is effectively an admission against interest

44
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.

45
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:

46
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
that Ms Bolding had confessed to killing a patient "by intentionally administering lethal amounts of
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.

47
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.

48
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
you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You

49
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

also have the right to stop answering until you talk to a lawyer.

50
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

51
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.

52
53
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.

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
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.

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
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
Death" case in Las Vegas where a nurse was accused with tampering with ventilators 68,69. The alleged

68Kalisch PA, Kalisch BJ, Livesay E. The "Angel of Death". Nursing Forum 1980; XIX: 213-241.

53
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.
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

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".

71Shem S. The House of God. 1979 London: Bodley Head.

54
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
for a barbiturate solution which induces unconsciousness followed by potassium chloride to induce
cardiac arrest.

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
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
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
special request 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 Pembroke 89 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 with an inquisitorial procedure having jurisdiction over criminal matters in England was
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
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 driving 94 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.

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

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
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
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

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
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
that the Frye test concentrates on the test itself and not on whether it would yield relevant data in a

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
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.

30

25

20

15

10

0
3 4 5 7 12 17 21 23
Nurse Number

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 Bayesian 141 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 χ2 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 Other Trial Result
Interview Admission

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

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
who have 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.

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