Medical experts in the dock: expectations of and advice for witnesses

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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: expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation (a point which was first made in a medical case, Whitehouse v Jordan in 1981)7 an expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his or her expertise an expert witness in the High Court should never assume the role of an advocate an expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts that would detract from his concluded opinion (a principle derived from another medical case In Re J8) an expert witness should make it clear when a particular question falls outside his expertise (the point on which Sir Roy Meadow was criticised) if an expert opinion is not properly researched because he or she considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (again, from the medical case In Re J8) in cases where an expert witness who has prepared a report does not assert that the report contains the truth, the whole truth, and nothing but the truth without some qualification, that qualification should be stated in the report if, after an exchange of reports, an expert witness changes his view on a material matter, having read the other side's expert report, or for any other reason, such change of view should be communicated (through legal representatives) to the opposing bench without delay and, when appropriate, to the Court where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports, or other similar documents, these must be provided to the opposing party at the same time as the exchange of reports

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: Recognise that your overriding duty is to the court and to the administration of justice. It is your duty to present your findings and evidence, whether written or oral, in a fair and impartial manner Act with honesty, integrity, objectivity, and impartiality Not discriminate on grounds of race, beliefs, gender, language, sexual orientation, social status, age, lifestyle, or political persuasion Comply with the code of conduct of any professional body of which you are a member Provide expert advice and evidence only within the limits of your professional competence and only when fit to do so Inform a suitable person or authority, in confidence where appropriate, if you have good grounds for believing there is a situation which may result in a miscarriage of justice In all aspects of your work as a provider of forensic advice and evidence you must: Take all reasonable steps to maintain and develop your professional competence, taking account of material research and developments within the relevant field and practising techniques of quality assurance Declare to your client, patient, or employer if you have one, any prior involvement or personal interest which gives, or may give, rise to a conflict of interest, real or perceived; and act in such a case only with their explicit written consent Take all reasonable steps to ensure access to all available evidential materials that are relevant to the examinations requested; to establish, so far as reasonably practicable, whether any may have been compromised before coming into your possession; and to ensure their integrity and security are maintained whilst in your possession Accept responsibility for all work done under your supervision, direct or indirect Conduct all work in accordance with the established principles of your profession, using methods of proven validity and appropriate equipment and materials Make and retain full, contemporaneous, clear and accurate records of the examinations you conduct, your methods and your results, in sufficient detail for another forensic practitioner competent in the same area of work to review your work independently Report clearly, comprehensively and impartially, setting out or stating: your terms of reference and the source of your instructions the material upon which you based your investigation and conclusions summaries of your and your team's work, results and conclusions any ways in which your investigations or conclusions were limited by external factors, especially if your access to relevant material was restricted; or if you believe unreasonable limitations on your time, or on the human, physical or financial resources available to you, have significantly compromised the quality of your work that you have carried out your work and prepared your report in accordance with this Code Reconsider and, if necessary, be prepared to change your conclusions, opinions or advice and to reinterpret your findings in the light of new information or new developments in the relevant field; and take the initiative in informing your client or employer promptly of any such change Preserve confidentiality unless: the client or patient explicitly authorises you to disclose something a court or tribunal orders disclosure the law obliges disclosure or your overriding duty to the court and to the administration of justice demand disclosure Preserve legal professional privilege: only the client may waive this. It protects communications, oral and written, between professional legal advisers and their clients; and between those advisers and expert witnesses in connection with the giving of legal advice, or in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings

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

In active clinical practice or retired within the last two years Sees similar cases in day to day practice A member of, and in good standing with, the appropriate Royal College or professional body Up to date with continuing professional development Mastery of the current evidence base that underpins practice Knowledgeable of child protection issues Able to understand the family context of the child

Conclusion

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.