CLINICALNEGLIGENCE(inpart) IN THE HIGH COURT OF JUSTICE CLAIM NO.

HQ11X01668 QUEENS BENCH DIVISION between:ROBIN PHILIP CLARKE and THE DEPARTMENT OF HEALTH / THE CHIEF DENTAL OFFICER Claimant

Defendant

APPLICATIONTODISMISSAPPLICATION

Introduction 1. The Defendants Application for summary judgment or to strike out the Claim should be dismissed without a hearing (i.e., at most only their written rebuttals hereto), because it can be shown to be clearly an abuse of the Court and of the proper purpose of summary judgment or strike-out. 2. The proper purpose of strike-out and summary judgment is to act as a sort of filter and reduce inefficiency, in respect of statements of case (or parts thereof) of which the inadequacy can be shown both clearly and quickly. Thereby can be properly avoided much further work on such cases. 3. A defendant may misuse the strike-out procedure, in the hope of avoiding the matter coming to a proper trial, and in the hope of generating confusion and prejudicing the outcome by turning the tables on the claimant such that the claimant becomes treated as the defendant of his claim rather than given the proper opening presentation of the claim that the normal process rightly grants. 4. The application by the Defendants falls firmly into the latter, abusive category. If there were so much as a single clear fatal defect of the Claim, they could just state it and rest their case thereupon. But instead they only put forth a barrage of consistently misleading assertions which confusingly turn just about all the issues of the case on their head. It will be shown here that all eleven supposed faults of the Claim are entirely specious, 100% false. The notion of a reasonable body of expert opinion that amalgam is harmless 5. Consider for instance, their opening premise, their Paragraph 4(1) notion that use of dental amalgam incontrovertibly accords with the views of a reasonable body of . opinion. That surely decisively demolishes the Claim, given their four pages of impressively-authoritative citations and the thick wadge of exhibits they attach?

 6. Nearly two pages of the Defendants Application are taken up with paragraph 9, in which they boast about how their experts are supported by that long quotation from a WHO 2009 report. And yet these Defendants, despite having the great resources of the DH at their disposal, fail to mention that that WHO 2009 report was retracted five months earlier by the WHO themselves due to being a fraudulent propaganda concoction (as indicated by Exhibits RPC1, RPC2, RPC3, and conspicuous absence from the WHOs own website). The Defendants are now routinely quoting that fraudulent report at their victims. 7. Their paragraph 8 contains a similar long quotation from FDA 2009 as being supposedly better experts than the Claimants own experts. And yet they fail to mention the ongoing massive legal challenges to that FDA 2009, and nor do they mention the serious corruption surrounding it (Exhibit RPC4). While in charge of preparing FDA 2009, Commissioner Hamburg was improperly holding $200,000 Schein amalgam stock options. She says she recused herself from involvement but has refused to say quite when. She passed it on to her FDA successor Scharfstein who is currently hopelessly attempting to defend his improper suspension of a famous mercury researcher in the Mark Geier v Maryland Board of Physicians case. Such are the Defendants respectable experts. A serious flaw of FDA 2009 was also pointed out in Particulars 23(g). 8. Then their paragraph 7 contains yet another of these boasting quotations, this time from SCENIHR 2008. And yet they make no mention of the damning critiques which were cited in the Particulars of Claim themselves (Paras 23(a), 35(b), 35(c), plus I was going to add more in evidence stage). And of course they make not the slightest rebuttal of those critiques either, because, as said in Particulars Para 29: These experts never answer the criticisms, or even acknowledge their existence. Because they have no answers. A 2011 article in the Journal of Occupational Medicine and Toxicology (Exhibit RPC5) unpicks the pervasive falseness of the SCENIHR report, and in a concluding section headed The role of organised dentistry in SCENIHR and in defending amalgam notes that: The SCENIHR amalgam expert group consisted of one engineer (chairman), four dentists, a toxicologist, and two vetinarians. The chairman had tight contacts to the industry. No experts for medicine or environmental medicine were included. One must wonder why it was the dentists who represented the strongest party in SCENIHR. Due to their education and clinical experience, dentists are not able to judge medical systemic side effects caused by dental amalgam. And the critique by Mats Hanson (RPC6) states that the SCENIHR is: .more distinguishing for what it has left out than for what it contains. We cannot find any reference to. Likewise we find no information on. Not so for other health effects.. We must assume the omission 2

 is deliberate. We can find no discussion on. This greenwashing report will not be accepted in Scandinavian countries where the awareness of amalgam toxicity is widespread and the report is more akin to the science produced by the tobacco industry. And numerous other equally damning critiques of SCENIHRs expert report are publicly available to read, but again, never mentioned by the Defendants (or by the SCENIHR themselves). 9. Not satisfied with the above three-card trick, the Defendants add to it (in Paragraph 10) yet another of these trade propaganda scripts, the WHO/FDI 1997 statement, the untruthfulness of which was already shown in Particulars Para 23(d), but of course they make no mention of that either. 10. You can thus see that the greater part of the Defendants Application is taken up with that parade of misleading misinformation, well-designed to mislead a reader that they really do have all that sound respectable expertise on their side, when in reality their very Application itself proves to be an outstanding accidental Witness Statement illustrating the exact counterpoint: that their experts are indeed in reality falsifying charlatans who only present one side of the case and pretend the other side does not exist which was exactly the tortious conduct being alleged in this Claim. So why should we believe anything else thats written above the Defendants Statement of Truth? And why, if there is any genuine expertise defending amalgam usage, do they instead so consistently only call up pseudo-expertise, again and again, in their support? ~~~~~~~~~~ 11. It will next be shown that the entire remaining content of the Defendants Application is equally misleading and meritless, indeed outrageous. Alleged deficiency in respect of evidence of causation 12. The assertions in the Defendants Paragraph 11 about a supposed deficiency of expert evidence on causation were already addressed in the Addendum re Experts, to which they have here made no reference let alone rebuttal because, again, they have no answers. And the point that there are no experts is now even more laid bare, thanks to the Defendants selfincriminating paragraphs 7, 8, 9, and 10, exposed hereabove. Yet more pseudo-expertise on causation 13. Their Paragraph 11 further asserts that KH7 (RPC7 herewith) constitutes useful expert counter-evidence on causation. And yet that letter from Dr Whittington was written on the basis of merely two meetings to chat with me, 34 years ago. Dr W. was a General Practitioner with no expertise in psychiatry or toxicology, did not rule out mercury, and no tests were done. He merely suggested that commonplace Freudian speculation that These would seem to relate to his upbringing., which is nowadays considered very dated and non-scientific in scientific circles. 3

 Alleged lack of historical opinion against amalgam usage, and of duty of care 14. The next supposedly damning fault is raised in Paragraph 4(2), that The Claimant does not plead or identify any reasonable body of scientific / medical / dental opinion which suggested that at that time [40 years ago] that the use of dental amalgam was clinically inappropriate. 15. On the contrary, Particulars Paragraphs 17 and 18 gave citations on exactly that point, and indicated the existence of more: Numerous studies and reports exist, for example: Numerous examples include: Substantial cuts were made to the Particulars here, due to complaints that it was far too lengthy. And this case has not even got to the evidence stage yet. 16. In the context of the many regular intense condemnations of the use of amalgam, and testimony to its causing classic mercury vapour disabilities, in the 1960s the duty of care burden of proof lay on the Defendants to show safety. But instead they sided with the amalgam trade lobby and their concealment of the truth, exactly as is now exposed in their latest disgraceful document that is the Defendants Application. 17. For approximately forty years the Claimant was incapacitated by the classic mercury poisoning syndrome repeatedly described by these earlier sources, and yet in all that time the Defendants did nothing about it except mislead yet more victims with complete lack of informed consent and with absolute denial that there was any possibility of even the slightest causation by amalgam (as per nauseatingly lengthy Particulars Para 27). Alleged lack of pertinent advice from the Defendants 18. Paragraph 6 states I am unable to identify . any asserted advice given by the Defendants at the time . over 40 years ago. Exhibit RPC8 herewith shows advice being given by the Chief Dental Officer in 1998. Its second sentence, COT last considered the safety of dental amalgam in 1986 makes clear that a previous such advice operation took place in 1986 and there was at least one previous to that. Subsequent to the Emergency Medical Service founded in 1939, the NHS was founded in 1948. It is unreasonable to expect the Claimant to locate some advice document from the mid-1960s when the advice or negligent absence thereof obviously existed anyway. They wouldnt have advised for instance use of leeches or head-hammering therapy in the the NHS. But they did advise (or not caution against) storage of large lumps of a notorious neurotoxin in mouths two inches from brains, because a profitable trade lobby pressed them to. 19. RPC8 shows that the Defendants were giving such false advice more than 25 years ago and thereby have for many years prevented the due diagnosis and treatment of the Claimants classic mercury poisoning syndrome. And it is too improbable to deny that already in the 1960s the same advice existed in fact or implicitly in omission (suppressing valid risk warnings), and thus was also causal to the initial installation of nineteen amalgams in the teenage Claimant at that time.

 Alleged public law immunity and hence lack of duty of care 20. Paragraph 6 continues by asserting public law immunity, and concluding with the assertion that the proper defendants would be the dentists involved. But dentists are not toxicologists and do not pretend to be. Just as a High Court Judge is not so arrogant as to pretend to be a medical expert, likewise dentists reasonably give trust to the advice so confidently pressed on them by the Defendants in documents such as RPC8. The dentists could not reasonably be considered negligent in doing so, and indeed the blame properly lies with the authors of the defective advice, so a judgment against a dentist would be both unjust and unavailable. Redress accordingly can only be against the authors of the negligence, namely the extant Defendants. 21. Paragraph 6 further misleads with the assertion that The expression of views by the Government and Chief Medical Officer are obviously public acts which cannot give rise to a private law duty. Exhibit RPC8 explicitly shows advice, medical clinical practice advice, being given not to the general public but specifically to an audience of General Dental Practitioners and General Medical Practitioners. It is thus obvious that RPC8 is medical advice from officers acting as higher-level advisory consultants in the medical system. Free from risk is a statement of medical advice. A statement of public policy would consist instead of for instance Amalgam is hereby permitted for use in all patients teeth. 22. And in line with this the Defendants website repeatedly states that the role of the CDO is to advise, or to give advice, as an advisor. 23. Compared to the spin-doctoring characterisation as expression of views by the Government and its Chief Medical Officer, a greatly more reasonable characterisation is as follows. NHS junior doctors and their assistants are liable for negligent clinical practice. There is thereupon a heirarchy of more senior medics and consultants who may provide advice to the preceding. They are all liable for any negligent clinical advice. They risk losing their jobs for it. This goes up the scale until it reaches the top ranks who give top-level advice on what the lower practitioners should be doing clinically. These top-level personnel, such as the Chief Dental Officer and the MRHA, are thus performing exactly the same function of clinical advice as are the lower clinical consultants, hence with the same duty of care to the patients to whom their advice is applied. And yet the Defendants would have us understand that a peculiar immunity from blame for negligence suddenly arises in respect of just those top levels; and that a peculiar inaccessibility of justice suddenly arises at that same point, in peculiarly sharp distinction from the well-developed system of compensation for all other acts of NHS (and hence DH) negligence.

 24. Even though the clinical advice from the CDO is at a nationwide level, there arises none of the considerations which elsewhere might justify public law immunity. Notably, the Defendants have not put forth any actual such consideration. It is not a matter of competing demands on resources, or of valid political choice. It is a matter of choosing to endanger the health of un-informed victims by practicing false medicine for profiteering purposes, and then systematically pretending it has not happened and persistently preventing due treatment. And a recent public commentary by Birmingham Law Society stated the important consideration that: Clinical negligence litigation has acted as a major incentive and source of learning to promote better patient safety. If people cannot challenge the standard of care they receive there is a risk that the NHS will become complacent and fail to learn lessons or seek to improve. 25. It is not even that the Defendants should have banned amalgam outright, but only that they should not have promulgated such a regime of falsehood about it, enduringly preventing any restorative treatment of those who were injured by it. And now seeking to prevent even any funding for the treatment they callously deny, in their perverted concept of justice. 26. It is not even as if the Claimant is here seeking to have Dr Cockroft personally dragged before a jury and then sacked and bankrupted for injuring the Claimant and others (though many would). Allegation of 2004 or 2007 date of knowledge 27. The Paragraph 12 allegation of being time-barred is equally false. 28. Contrary to their yet further false assertions, the Defendants exhibits KH8 and KH9 (here RPC9 and RPC10) show no knowledge whatsoever, neither of causation nor, equally critically, of negligence of DH advice, let alone any suggestion of possible legal action or even who a defendant might be. 29. Asserting something is absolutely different from knowing it. Thousands of people adamantly assert that three of the World Trade Center towers were demolished by secretly-planted bombs and then fell at free-fall speed into their own footprints. Yet they certainly dont know any of this, and their knowledge would rightly be dismissed by every court in the world. 30. The Claimant did assert his confidence that the amalgam was causal, but only by way of a desperate attempt to persuade them to provide reasonable precautionary treatment for his terrible illness. He had not at that time managed to find anything even remotely like real compelling scientific evidence to prove causation (indeed none of that now raised in the Particulars, let alone the Addendum), and so there would have been not the slightest prospect of filing a winnable claim on the basis of his mere assertions and gross lack of knowledge at that time, especially in the face of a daunting parade of official "experts" deceiving everyone with absolute assertions that there was not the slightest evidence of harm (as per above).

 31. The email KH8 / RPC9 was concerned with the lack of evidence of safety, which is quite distinct from any possible positive evidence of harm. No knowledge of evidence of causation of the injuries is indicated in it. The only content relating to any positive harmfulness is the quotations from the Swedish 2003 report, and yet the most that that report contains is those mere assertions that amalgam must be considered an unsuitable material, and amalgam should be eliminated in dental care. No supporting scientific references or argument were contained in that 2003 report by which a claimant could defend those assertions against the weight of seemingly much more authoritative counter-assertions such as those paraded in this very Defendants Application. Let alone establish causality of the Claimants particular symptoms, of which nothing was even asserted in that 2003 report. It was precisely because of the inadequacy of that report that the Claimant was several years afterwards still trying to find actual scientific evidence that could convert his fears into genuine confident knowledge of what was causing his disabilities. 32. The letter KH9 / RPC10 was primarily about the Claimants update review of his autism theory (i.e. the paper it mentioned as being there-attached), which had nothing whatsoever to do with the Claimants illness as he has never had (nor claimed to have) any autism-type condition, which would not begin at age 17 anyway. 33. That letter did contain a desperate appeal for treatment of his terrible illness. If he had had any significant evidence of causation to call upon, he would surely have included it there. He did not, and we can therefore infer that he indeed did not have any such knowledge. KH9 / RPC10 is therefore evidence of the exact contrary of what the Defendants assert. And exactly likewise the request for precautionary treatment in email KH8/ RPC9. 34. Furthermore, the date of knowledge also cannot precede date of knowledge of the causal negligence of advice by the Defendants, which did not become apparent to the Claimant until several years later still. And furtherfurthermore, a case in the US Federal Appeals Court (exhibit RPC11) recently ruled that date of knowledge can only begin once the medical community at large recognises a link, in which case has it even occurred yet? 35. The whole concept of date of knowledge is flawed in the context of a case such as this where there is in reality only a suspicion, a theory, in support of which bits of evidence gradually accumulate, with no decisive date such as when a patient discovers an object has been left in his chest. The date of knowledge concept originated with that very different sort of case in mind. Allegation that there are no good reasons for disapplying a time-limit 36. This section is superflous in view of the preceding one, but will still be included here so as to show the 100% completeness of the vacuousness of the Defendants Application.

 37. Their Paragraph 12 asserts that there can be no good reasons for disapplying the time limit in this case. But yet again this is falsehood. 38. Supposedly the fact that the Claimants disabilities have spanned about four decades, and the Claimant has been increasingly desperately appealing for treatment for seven years, raises an obvious prejudice caused by this additional delay in issuing proceedings. Really? Would not an obvious fairer view be that in the context of those greater time-spans of inexcusable inaction by the Defendants themselves, anyone demanding a mere threeyear limitation period would be positively mean-minded? Most victims of the same experiences as this claimant would have topped themselves long ago. Relevant to Limitation Act 1980 s.33(3)(b) and (d). 39. This unreasonableness is all the more so, given that as per Limitation Act 1980 s.33(3)(c) the Defendants have been very far from assisting with enabling of any of the knowledge in question. 40. And even more so, given that the Claimant (/initiating litigant) has been during much of the last few years severely mentally incapacitated to near non-functionality by the very same Defendants fault. Indeed for much of the time might reasonably be considered to have had a status of legal incapacity, such was his mental paralysis (as per Particulars Para 44(c)). Even this present document has taken him many days of struggle even now, when his obsessive countermeasures have brought considerable alleviation. 41. In this connection, please note (i) the 1926 testimony of Prof. Alfred Stock about the mental paralysis he experienced in his own dental mercury poisoning and subsequent recovery, which can easily be found on the internet by searching for Alfred Stock Birgit Calhoun; and (ii) the quotations below from pages 71-2 of Amalgam Illness by Andrew Hall Cutler (Exhibit RPC12) (which facts would in principle, if the whole of this section were not superfluous anyway, have major relevance to the considerations of Limitation Act 1980 s.33(3)(a)). But firstly note that this Claimant unlike Prof Stock et al. has had to singlehandedly attempt to manage his household in poverty at the same time as endlessly trying to persuade the Defendants to provide treatment and meanwhile trying to keep himself (a bit) sane. Mercury poisoned people also do not have as many hours in the day that they are able to concentrate, pay attention and be active as other people do. Thus a few minutes of unnecessary work on their healthcare is a greater burden on them than it is on other patients. Procrastination [or rather this Claimant would describe it as indecision] is a symptom of mercury poisoning. You will do it a lot. Learn all of the ways you can to defeat it [in my experience none] and use them. Have your friends and family help with this too [some chance]. [p.72:] How to keep your life together during treatment: There will be a long period of time during which you just wont be able to get as much done as you would like. You are probably already 8

 behind in life because of this. Focus on catching up and keeping up! Dont take any new things on! Do essential things and ignore the rest! For practical purposes you dont have as much time in the day as other people. So dont take stuff on that just takes a minute. You dont have as many minutes to spare as other people do! Simplify life, avoid stress [so try starting a legal action as a litigant in person]. And yet we are to believe that it would be so unfair on the pathetic powerless little Department of Health to have this Claimant persecuting them three years too late? The amalgam allegedly not having been placed by the Defendants 42. The Defendants remaining piece of rubbish is their Paragraph 4(4) statement that The dental amalgam was not placed into the Claimants teeth by the Defendants .. That is both untrue and irrelevant (hence indeed not mentioned in the Particulars). 43. It is irrelevant because even if all 19 amalgams had been placed by private dentists, that placement would still have been caused by the Defendants negligent advice which was given to and applicable to all dentistry in the UK rather than only NHS. This is evidenced in Exhibit RPC8. 44. It is additionally irrelevant because the original placement was only a small part of the causation of the injury. The failure to remove it, or even notify anyone of the risk, in all the subsequent many years, was a larger part of the causation, as the Claimant could otherwise have achieved a recovery by removal and detoxification as experienced by many others victims. 45. It is anyway untrue as should have been apparent from the Claimants registration with the (NHS) Dental Hospital for 23 years. Subsequent to the Dental Hospital the Claimant has had only NHS treatment, from dentist Deborah Morse. And prior to the Dental Hospital the Claimant also only had NHS treatment, by dentists in the towns local to his home. Though as the Dental Notes from before the Hospital were not supplied to him even on second request, the records have presumably been mislaid. But in any case, if the Defendants really want to make a big issue of this irrelevant point, then the Claimant can provide witness statements from no less than six other family members, attesting that the family of five children was too poor to afford private treatment (and indeed the Claimant qualified for free school meals) and most certainly would not have had private dentists installing nineteen amalgams while he was only a teenager.

 Conclusion 46. The Defendantss Application seeks to make out ten damning flaws of the Claim, namely: (1) a reasonable body of expert opinion showing harmlessness; (2) a deficiency of evidence of causation; (3) evidence of an alternative causation;. (4) lack of earlier reasonable opinion of harmfulness; (5) a lack of any pertinent advice from the Defendants; (6) public law immunity; (7) lack of duty of care; (8) 2004 or 2007 date of knowledge; (9) no good reason for disapplying of time-limit; and (10) the amalgam not being placed by the Defendants. 47. And yet it has here been shown that every one of those alleged flaws is bogus, ten out of ten, 100% timewasting falsehood. Not a single one of the many sentences makes any valid challenge to the Claim. And we can only suppose that this is as powerful as their Defence (not yet filed, and now overdue) is going to get, else they would have raised a more sound point here already. It follows that it is the Defence that has (11) poor prospects of success rather than the Claim. 48. The Defendants Application for Summary Judgment or to Strike Out the Claim should therefore be recognised as entirely devoid of merit, unworthy, outrageously deceiving, and an abuse of the Courts processes, and for these reasons dismissed without a hearing unless they can provide written representations which clearly disprove the facts and evidence here submitted. 49. At the very least they should specify a maximum of two clear, unambiguous, fatal defects of the Claim which their application has raised. And it is already clear from the foregoing that they cannot.

STATEMENT OF TRUTH I believe that the facts stated in this Application To Dismiss Application are true.

--------------------------------------------------------------Signed Robin Philip Clarke Claimant Dated

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 CLINICALNEGLIGENCE(inpart) CLAIM NO. HQ11X01668 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION between:ROBIN PHILIP CLARKE and THE DEPARTMENT OF HEALTH / THE CHIEF DENTAL OFFICER Claimant

Defendant

APPLICATIONTODISMISSAPPLICATION

EXHIBITS:
RPC1: Pro-Amalgam Report Withdrawn http://iaomt.org/news/archive.asp?intReleaseID=357&month=1&year=2011 RPC2: Complaint about WHO 2009 from Mercury Policy Project RPC3: Complaint about WHO 2009 from Associazione Malattie da Intossicazione Cronica e/o Ambiente Italy RPC4: Complaint about FDA 2009 from Consumers for Dental Choice RPC5: Mutter J, Journal of Occupational Medicine and Toxicology 2011 RPC6: Mats Hanson critique of SCENIHR RPC7: Letter from Dr Whittington in 1977 RPC8: Advice from CDO to dentists, 1998 RPC9: Email from Claimant to Dental Hospital, 2004 RPC10: Letter from Claimant to CMO, January 2007 (=KH8) (=KH9) (=KH7)

RPC11: US Court of Appeal decision, Cloer v Secretary of Health, 2010 RPC12: Pages 71-72 of Amalgam Illness by Andrew Hall Cutler

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 CLINICALNEGLIGENCE(inpart) IN THE HIGH COURT OF JUSTICE CLAIM NO. HQ11X01668 QUEENS BENCH DIVISION between:ROBIN PHILIP CLARKE and THE DEPARTMENT OF HEALTH / THE CHIEF DENTAL OFFICER Claimant

Defendant

APPLICATIONTODISMISSAPPLICATION

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