Key required attributes and the lack of expert evidence are identified by the recent proposals from the Chief Medical Officer and Department of Health, says Dr Gerard Panting
Medical experts have been in the news over the past few months. First, the Court of Appeal delivered its judgement in the case of Sir Roy Meadow, who gave evidence at the trial of Sally Clark for the murder of her two sons.1 Then Sir Liam Donaldson, the Chief Medical Officer, announced his plan for NHS trusts to supply medical experts to give evidence in child abuse cases through the new National Knowledge Service.2 Finally, it was announced that nine criminal convictions based on the evidence of a pathologist, Dr Michael Heath, are to be reviewed.3
According to Sir Liam, it has become difficult to find doctors who are willing to provide expert evidence, especially in child abuse cases. This is for a variety of reasons, including lack of professional support, the time involved in being a witness, and fear of intimidation during cross-examination by barristers.2
Who monitors the experts?
The news from the Court of Appeal that expert witnesses are not immune from fitness-to-practise procedures can have done little to encourage potential witnesses to come forward.4
The Court found that if the conduct or evidence of an expert witness in the civil or criminal courts raised a question over the expert's fitness to practise, the General Medical Council (GMC) or other regulatory bodies should be entitled to investigate the matter. If necessary, these institutions would take action against the doctor in order to protect the public.5
Furthermore, the Court said it was not for the judge in a trial to decide whether the witness had fallen so far below the expected standard that disciplinary action was warranted; that should be a matter for the GMC.4
The silver lining in all this for Sir Roy was that the Court of Appeal also found, by a majority of 2:1, that the GMC's fitness-to-practise panel was wrong to find him guilty in July 2005 of serious professional misconduct as a result of the evidence he gave at the trial of Sally Clark. The majority view was that Sir Roy had misunderstood the statistics and, when giving evidence, did not draw attention to the fact that he was not an expert in statistics. They found that although he fell below the standards required of him by the profession, that lapse did not justify a finding of serious professional misconduct.4
What should be expected of expert witnesses?
There is a considerable amount of advice available for anyone wanting to become an expert witness.
The courts have analysed the role and responsibilities of expert witnesses in a number of cases, the leading one being National Justice Compania Naviera SA v Prudential Assurance Co Ltd ('The Ikarian Reefer').6 The judge's statement in this case is summarised in Box 1. He concluded that: 'an expert witness will know that he must give evidence honestly and in good faith and must not deliberately mislead the court. He will not expect to receive protection if he is dishonest, or malicious or deliberately misleading.' 6
Those particular principles have not only stood the test of time but have been reiterated in the Civil Justice Council's Protocol for the Instruction of Experts to give Evidence in Civil Claims.9 That document sets out how experts should be instructed, and the duties of experts, including how to conduct themselves when instructed only to advise.
The protocol stresses the expert's overriding duty to help the court, and expressly states that this overrides any obligation to the person instructing or paying the expert.
The protocol goes on to say: 'experts should provide opinions which are independent, regardless of the pressures of litigation. In this context, a useful test of independence is that the expert will express the same opinion if given the same instructions by an opposing party. Experts should not take it upon themselves to promote the point of view of the party instructing them or to engage in the role of advocates.'9
The situation under the protocol is different where experts are instructed just to advise one party in the proceedings and where their evidence is never intended for use in court. Under these circumstances, that advice can remain confidential, which still allows litigants and their advisers to pick and choose their evidence.
Box 1: The duties and responsibilities of expert witnesses in civil cases
As stated by the judge in 'The Ikarian Reefer' case,6 these include the following:
Council for the Registration of Forensic Practitioners
In addition to the Civil Justice Council, advice can also be obtained from the Council for the Registration of Forensic Practitioners (CRFP).10 Forensic practitioners are expert witnesses.
The Council is an independent regulatory body that aims to promote public confidence in forensic practice in the UK by publishing a register of competent practitioners. It ensures that these practitioners remain competent through periodic revalidation and by taking action in cases where registered practitioners fail to meet the necessary standards.
Registration with the CRFP is entirely voluntary, but those who do register are expected to adhere to the Council's code of practice reproduced in Box 2 and which, in large part, repeat the principles established in the Ikarian Reefer case,6 and the Civil Justice Council's protocol.9
Box 2: Code of conduct from the Council for the Registration of Forensic Practitioners10
As a registered forensic practitioner you must:
In all aspects of your work as a provider of forensic advice and evidence you must:
Bearing Good Witness identifies problems and solutions
Sir Liam Donaldson's initiative Bearing Good Witness,2 published in 2006, contains the findings of a review commissioned in 2004 by ministers in response to Sally Clark's imprisonment, and other high profile cases. The report identifies the problems within the current system and makes proposals to resolve them and to secure a sustainable supply of medical expert witnesses for care and supervision of cases. In its entirety there are 16 proposals that are now out for public consultation.11
Findings of the report
Providing medical expert evidence to protect children who may be the victims of abuse is fully consistent with the duty of the NHS to safeguard children. National Health Service bodies with significant responsibilities for paediatric services should provide medical expertise to the family courts.
There should be a contractual agreement in place for supplying medical expert evidence to the courts within specified areas.2
The report also contains proposals for quality assurance so that: 'the knowledge and skills needed in all court settings should be taught as a part of basic and continual medical education. Relevant educational and standard-setting bodies should develop a competence-based syllabus for court skills. Within this development, priority should be given to medical expert work in child protection cases.'2
The key attributes of a medical expert witness (in child protection cases) are identified in the report2 and these are reproduced in Box 3.
In addition, the report proposes development of accreditation for teams of expert witnesses, and suggests that this might be undertaken by the CRFP and/or the British Psychology Society.2
The GMC does not escape a mention in Bearing Good Witness, as it is suggested that it should review its supplementary guidance, Giving Expert Advice,12 to widen its scope and 'bring it up to date in relation to recent developments and issues in this area.'2
Harking back to Sir Liam's own review of the General Medical Council, Good Doctors, Safer Patients,13 he suggests that various bodies should work with the GMC to investigate ways of dealing with complaints about expert evidence given by doctors, in order to ensure that routes of appeal through the courts are used when they are appropriate.2
Box 3: Key attributes of a medical expert witness2
It is clearly important that expert witnesses should be impartial, limit their opinions to issues on which they are truly expert, and behave with integrity.
It is, however, equally important that the legal system, which provides for the rigorous testing of evidence, is not too quick to point the finger at experts when failure on behalf of the lawyers to test the evidence properly leads to miscarriages of justice.
- The Chief Medical Officer and the Department of Health. Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases—A report by the Chief Medical Officer. London: DH, 2006.
- National Justice Compania Naviera SA v Prudential Assurance Co Ltd ('The Ikarian Reefer')  2 Lloyd's Rep 68.
- Whitehouse v Jordan  1 All ER 267.
- Re J (Child Returned Abroad: Human Rights)  EWCA Civ 417;  2 FLR 85, para 6
- Civil Justice Council. Protocol for the Instruction of Experts to give Evidence in Civil Claims. www.dca.gov.uk
- CRFP code of conduct. Good practice for forensic practitioners. www.crfp.org.uk/
- Department of Health. CMO Update 45. A report by the Chief Medical Officer. London: DH, 2007.
- General Medical Council. Giving expert advice. www.gmc-uk.org/guidance/archive/library/giving_expert_advice.asp
- Department of Health. Good doctors, safer patients: Proposals to strengthen the system to assure and improve the performance of doctors and to protect the safety of patients. A report by the Chief Medical Officer. London: DH, 2006.G