Will Bordell
by Will Bordell

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This piece was originally published by The Justice Gap.

When the editors of Prometheus received word in mid-July that its publisher would be dropping the journal, they were baffled. With immediate effect, an academic publication that aimed to ‘challenge prevailing views’ and ‘encourage debate’ for 40 years had been axed. (Pic: detail form Prometheus Brings Fire by Heinrich Friedrich Füger)

Problems had arisen over an issue covering shaken baby syndrome (SBS), one of the most controversial intersections of law and medicine. In its debates, the editors of Prometheus commission a proposition paper about a contentious topic, and then approach individuals from a variety of standpoints are invited to write responses. This time, the proposition paper was written by Dr Waney Squier, one of the few experts prepared to question the existence of the syndrome in court and who is currently banned from giving evidence in court. You can read an interview with Dr Waney Squier here.

Proponents of SBS argue that a ‘triad’ of symptoms - brain swelling, bleeding on the brain, and bleeding in the retina - indicate an inflicted injury and therefore child abuse. The science behind SBS has repeatedly been called into question by Squier and others.

‘I’ve long had a policy of sending off such papers with a note to the publishers asking their lawyer to have a glance over them,’ says general editor Stuart Macdonald, who helped to found Prometheus four decades ago. ‘It usually takes a couple of days. It has never taken longer than that.’

But this time, it did. The paper was sent to the publishers, Taylor & Francis in October 2017. Radio silence persisted for months. ‘It became clear that something was wrong in January,’ Macdonald recalls. A back-and-forth between managers at Taylor & Francis and editors at Prometheus began, culminating in the discontinuation of the journal in mid-July.

According to Macdonald, Taylor & Francis’s decision to cease publication of Prometheus came on the back of advice from a libel lawyer, who relayed concerns that the papers strayed beyond scientific criticism and into more dangerous territory. In the lawyer’s feedback, sent to Prometheus’s editors on June 8, 2018, ‘a material legal risk’ is identified. However, the lawyer in his response admits to knowing ‘little of the underlying medical debate nor [sic] the associated legal proceedings’.

Analysing Squier’s paper as well as responses written by three contributors, the lawyer highlighted criticism of the General Medical Council (GMC) as a particular risk. The lawyer’s entry regarding an article written by Stephen J. Watkins, a senior NHS administrator from the Greater Manchester area, reads in its entirety: ‘Watkins – criticises the GMC by reference to cases such as those of Sally Clark and others’.

Mystified by such reasoning, Macdonald says he later raised the fact that the GMC’s chair, Sir Terence Stephenson, had also contributed a paper. In response, Macdonald claims, a manager at Taylor & Francis maintained that Stephenson may have been writing in a personal capacity, which could render him capable of defaming the GMC.

Taylor & Francis’s libel lawyer also questioned Heather Kirkwood’s account of a Metropolitan Police presentation made at the National Center on Shaken Baby Syndrome’s annual conference in Atlanta in 2010. The presentation, given by DI Colin Welsh, focused on undermining expert defence witnesses – and has since become somewhat notorious. Kirkwood, a Seattle-based lawyer, has testified under oath in the UK as to the accuracy of her notes from the event.

Macdonald maintains that DI Welsh was invited to contribute a paper to the debate but failed to do so. ‘Not far short of a hundred individuals had been approached to write responses to the proposition paper,’ Macdonald writes in a draft introduction to the SBS issue, which may now never see the light of day in an academic journal. Welsh’s boss at the time, Dave Marshall, who is listed as the presentation’s co-author on the NCSBS’s website, was one of those who did submit a paper. In it, he distanced himself from DI Welsh’s comments in Atlanta.

After Macdonald sought further advice from Taylor & Francis managers as to how to proceed, an email dated July 6, 2018 explained: ‘This is not an issue that can be resolved by changing some sentences, which is why our libel lawyer has not gone through each article line by line.’ Less than a week later, Macdonald was summoned to a meeting at which Taylor & Francis revealed its intention to stop publishing Prometheus.

Decline and fall

Taylor & Francis tell a very different story about the decline and fall of Prometheus. Claiming that the decision to axe the journal is related solely to ‘commercial performance’, the publisher maintains that it had been ‘publishing behind schedule for some time, with the most recently-published issue being issue 1 of 2017’, released last November.

Its statement continues: ‘Over the same period the journal has lost the majority of its subscribers.’

As for the SBS debate issue, Taylor & Francis states that it is ‘still under discussion’ with Prometheus editors and that ‘no final decision has yet been reached’. Moreover, the publisher claims that it intends to print the three issues that remain in the pipeline ‘before the end of 2018’.

I put these comments to Stuart Macdonald, who accepts that Prometheus is behind schedule due to ‘rock bottom’ morale among editors working for free in whatever spare time they have. In March and April 2018, Macdonald requested meetings with Taylor & Francis to help clear the air. The requests were refused.

A report from Prometheus’s last editorial meeting with Taylor & Francis, on January 24, 2017, offers no warnings or criticism of delays. According to Macdonald, it ‘makes no specific mention of being behind schedule, though we often are’. HE claims not have had any subscription figures from Taylor & Francis.

Macdonald regards as disingenuous the suggestion that the SBS debate issue remains ‘under discussion’. He reckons a final decision has already been made and agreed at a meeting in July. He quotes from an email sent by the journal’s long-standing production editor on August 22, 2018, which requests an update on ‘expected papers’ for the remaining issues, before concluding: ‘As discussed when we met, this is not including those papers for the Squier issue for reasons outlined then.’

Since its establishment, Prometheus has taken its raison d’être from the mythological figure from whom its name derives, attempting to challenge orthodox views on topics from higher education to the production of wine. The staple requirements of explaining methodology or presenting a literature review are loosened for the purposes of fostering debate. Macdonald argues that this approach permits discussion of important, contentious issues in an academic forum.

In his draft introduction to the SBS issue, Macdonald suggests that Taylor & Francis’s position draws two hard lines as conditions on which papers can be published. Firstly, ‘discussion must not go beyond the science of a subject’; and secondly, ‘there should be no criticism of identified individuals or organisations’. Such a position, for Macdonald, significantly narrows opportunities for innovative research that goes against the grain.

High and dry

A few years ago, Taylor & Francis attempted to interfere with an issue on the academic publishing industry. Lawyers suggested amendments that, in the editors’ view, amounted to censorship. A stand-off persisted for almost a year before Taylor & Francis backed down and issued a public apology in June 2014 (see here). ‘We thought lessons had been learned on both sides,’ says Macdonald.

For Macdonald, what is most upsetting about the SBS episode is what he sees as a complete absence of logic: ‘I can’t understand any of the reasoning.’ He and his authors feel as though they have received little in the way of explanation, and do not accept the lawyer’s analysis. The reality is, Macdonald concludes, ‘we’ve been left high and dry.’