Could you be an expert witness?
Making the decision to offer your expertise in the medical profession to a court of law isn't easy and there are many factors to consider, not least your time. The GMC has launched new guidance for doctors who undertake work as expert witnesses.
Society needs doctors to act as expert witnesses; they are essential to our judicial and tribunal systems and help resolve disputes that require specialist knowledge. Doctors can act as expert witnesses in a wide range of cases, and it is important that those who take on this role can do so with confidence, knowing what is expected of them.
In recent years there have been a number of high profile cases where medical expert witnesses have attracted criticism, for example, for giving evidence that was misleading or failing to disclose relevant information.
In light of the resulting debate over the role of the medical expert witness, and doctors’ reported reluctance to undertake this work, the GMC has published ethical guidance for doctors who give expert evidence in civil and criminal proceedings and other tribunals.
The new guidance expands on the principles of professional practice set out in Good Medical Practice and outlines how they apply to the work of the medical expert witness.
It emphasises the importance of:
- giving opinion and evidence within the limits of professionalcompetence
- keeping up to date
- recognising the expert’s overriding duty to the court and to the administration of justice
- explaining where there are a range of views on a particular question
- taking appropriate action where there is a change of opinion
- protecting and providing confidential information.
The guidance includes links to other organisations that provide advice or publish codes of practice for expert witnesses.
The content of the guidance was informed by a public consultation on the draft text. The GMC is grateful to all those who responded to the consultation, particularly to the individual doctors who drew on their own, often extensive, experience of expert witness work to help us produce guidance that is helpful, practical and promotes best practice.
You can read Acting as an expert witness on the GMC’s website, www.gmc-uk.org/guidance. If you have any questions about the guidance, please contact the Standards and Ethics team on 020 7189 5404 or email standards@gmc-uk.org.
‘Can you provide an Expert Report please?’
Alan Turner has often been asked this question. Here he offers some advice for doctors before taking the plunge.
‘Working on the reports, which can cover all aspects of care, I realised that to provide a report the most important requirements are common sense, to think logically and to provide a balanced view of the problem.
You will note that I have not mentioned the word ‘defending’ – we are there to give a balanced opinion on a problem and be prepared to justify that opinion in court, hence much research can be required.
Over the years that I have been writing reports, it has been hard work but satisfying as I hope that I have helped both the patients and the profession to resolve difficult situations. Certainly my knowledge has broadened.
Not all cases take an equal amount of time to complete. Before saying ‘yes’ it is important to assess the potential time required to complete the report in relation to the amount of work to which you are already committed. If there is any concern, do not accept. A rushed report can be a useless report. Do not forget you may be required to defend it in court.’
Alan G Turner BSc FRCS DL
Nothing to fear
Useful guidance for expert witnesses and those thinking of becoming expert witnesses is contained in Lord Justice Wall's Handbook for Expert Witnesses in Children Act Cases. The handbook covers every aspect of an expert's involvement in court proceedings. The following extracts provide examples of the practical advice and guidance which the handbook offers.
As a general rule, doctors do not read the law reports, and lawyers do not read medical journals. Thus, despite much excellent inter-disciplinary work and a number of good articles both in the legal and the medical press, there appears to be a continuing level of misunderstanding between the medical and legal professions about what is expected by the courts of expert witnesses...
Expert witnesses need to remember that most [judges]...rarely have more medical expertise than the intelligent lay person. It is for this reason that they rely heavily on expert opinion, and are dependent upon the integrity of expert witnesses.
Meadow v GMC [is a] very important decision for all expert witnesses...You may be concerned about its implications for you as an expert witness. Self-evidently, you do not want to be reported to the GMC by a disaffected litigant or relative because of what your have written in a report to the court or stated in your oral evidence.
My assessment is that you do not need to be concerned. The decision of the Court of Appeal in Meadow v GMC does not change the law. Its principal messages for you are;
(1) that experts in their reports and evidence should never stray outside the particular areas of their expertise; and
(2) if you are invited to do so in your instructions to advise or in your evidence, you should either decline the invitation, or make it very clear to the judge that the area on which you are being invited to comment is not one to which your expertise extends.
Do your work conscientiously, and provided your report and your oral evidence are honest, fair and well reasoned, and provided always that you have worked within the area of your expertise, you have nothing to fear and much to gain from participating...as an expert witness.
A Handbook for Expert Witnesses in Children Act Cases (2nd Edition, The Rt Hon Lord Justice Wall, Family Law, 2007)
View the Family Law website.