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The Importance of Expert Evidence

Medico Legal

by Dr Rob Hendry, Medical Director at the Medical Protection Society (MPS)

Recent events have drawn attention to theimportance of expert evidence in cases where there iscriticism of a doctor’s standard of care. It is welcomethat attention is now being paid to the vital role thatexpert evidence plays as well as what action can betaken to provide better support and training and to improve the standard and availability of expert witnesses. We now need to see this translated into action.

The Medical Protection Society (MPS) is the world’sleading protection organisation for doctors, dentistsand healthcare professionals. We protect and supportthe professional interests of more than 300,000 members around the world. Membership with MPSprovides the right to request access to expert adviceand support on clinical negligence claims, complaints,GMC investigations, disciplinaries, inquests andcriminal charges such as gross negligence manslaughter (GNM). Members also have the right to requestindemnity for claims arising from professional practice.

Doctors have become increasingly concerned aboutthe prospect of criminal charges with the case ofDr Bawa-Garba placing GNM against health care professionals firmly into the spotlight. Through ourwork in supporting doctors facing criminal charges we have also developed significant concerns.

MPS has an unparalleled wealth of experience insupporting doctors faced with GNM charges;providing robust advocacy and the best possible independent legal advice.

Since 2014, we have assisted more than 20 doctorswho have been investigated by the police for potential charges of GNM in England and Wales. Of these,four went to trial and one resulted in a conviction.

Dr Bawa-Garba was convicted of GNM in 2015,following her part in the death of six year old JackAdcock in 2011. She was given a two year suspendedsentence and was subsequently suspended from themedical register for one year by the Medical Practitioners Tribunal Service (MPTS). The General Medical Council (GMC) appealed the Tribunal’s decisionand sought agreement from the High Court to instead erase her from the medical register. The appealwas supported by the High Court. That ruling is now subject to a further appeal at the Court of Appeal.

MPS instructed a number of the country’s top QCsto represent Dr Bawa-Garba during this case.The outcome at the High Court was extremely disappointing and its implications have understandably caused a great degree of concern to the healthcare community.

GNM cases are usually complex, often involvesystems failures, and are devastating for all concerned. MPS has long argued that the criminal courtsare not the best forum to examine complex clinical matters, and we believe that a GNM convictionshould not automatically mean that a doctor who hasfully remediated and demonstrated insight into theirclinical failings is erased from the medical register.

We are pleased that the need to identify learnings hasbeen acknowledged and that following campaigningby MPS and others the Government are committedto introducing a series of reforms.

In February, the Secretary of State for Health andSocial Care, Jeremy Hunt MP, announced an urgentreview into how GNM is applied in healthcare, towhich MPS made a submission and gave oralevidence. Among the recommendations that MPSmade and which were reflected in the final reportpublished by Sir Norman Williams in June, was thatthe Academy of Medical Royal Colleges (workingwith key stakeholders) should lead the work topromote and deliver high standards of training forhealthcare professionals appearing as expertwitnesses.

When a patient dies under medical care, their deathmust be reported to the Coroner (or equivalent person in other jurisdictions). In assessing the standardof care delivered by a doctor, an expert medical witness report will be commissioned. In the absence of aseriously critical report it is unlikely that a GNM prosecution would ever get off the ground. It is therefore vitally important for all concerned that thesereports are of a high standard. It is in no one’s interest if a prosecution collapses when the medical expert changes their mind under cross examination.This merely prolongs the stress for the doctor whilstthe bereaved families are frustrated as they are unable to get closure on their loved one’s death. Thisprocess is an enormous waste of public funds, too.

Whilst it is ultimately for a jury to decide on whetherthe breach of duty by the doctor was so serious as tobe considered ‘gross’ and therefore criminal, the standard set for a breach of duty is largely determined bythe medical expert. In expressing an opinion on abreach of duty, the expert must be careful, balancedand fair.

That is why MPS has been eager to involve the wholesubject of expert witnesses in the debate around howGNM is applied in healthcare.

There are a number of steps that could be taken toensure that the standard and availability of expertwitnesses is constantly improved.

Firstly, having the skills and being prepared tocomment on the actions of one’s peers should be seenas an essential component in the role of all establisheddoctors, much in the same way as being involved inother non-clinical duties such as teaching and audits.Acquiring the skillset to be an expert witness shouldbe included in the training of consultants and GPs.NHS employers could take steps to make it easier fordoctors to be relieved from their clinical duties so theycan act as expert witnesses. This may require contractual reform to give the expert witness role greaterprominence. In addition, we would encourage moredoctors to consider putting themselves forward toperform expert witness duties.

If one of the outcomes of the Dr Bawa-Garba case andthe subsequent debate is that the role of expertwitnesses is now given more prominence, this wouldbe positive for similar cases going forward. Werequire competent and credible doctors who canpresent balanced evidence in the context of delivering healthcare in a modern day NHS. MPS providessupport to members who undertake the expertwitness role as we recognise that it is one of the coreduties of a doctor.

Secondly, expert witnesses should receive appropriatetraining to understand their duties to the court. MPShas experienced witnesses give evidence where theyappear partisan. As noted above, it is for the jury todecide on whether the breach of duty should be considered ‘gross’. However, it is for the witness to assistthe court in understanding the standard of caredelivered by an ordinary competent doctor andwhether in their opinion, it was met. It requires skillto be informative and balanced in a way that assiststhe court to set a fair benchmark for the accuseddoctor. Better training would go some way to improving this.

Thirdly, there needs to be a discussion about howcounsel instructing expert witnesses can be put undersome form of regulatory obligation to exercise duediligence in assessing whether someone is qualified toact as an expert witness for a case. This would be animportant step in maintaining the highest standards.Healthcare is a vast field of expertise, and thereforewitnesses should only be called when they have therelevant knowledge and experience of the area ofclinical practice central to the case.

Finally, the Academy of Medical Royal Colleges couldplay a greater role in promoting high standardsamongst expert witnesses and we are pleased to seethat this was one of the recommendations made bythe recent review led by Sir Norman Williams.

Expert evidence is central to all cases which involvecriticism of a doctor’s standard of care. GNM casesalthough relatively rare are the most extreme onessince they could cost the doctor not only their careerbut also their liberty. They usually involve a bereavedfamily who would believe that if it were not for theactions of a standalone doctor, their loved one maystill be alive. It is a huge responsibility to be the onewho advises the court on medical standards so it isvital for everyone involved that this is done to thehighest of standards.

About the Author

Dr Rob Hendry Medical Director

Robert was born and brought up in Glasgow andstudied medicine at Dundee University. After graduating in 1981 he undertook a number of hospital appointments before becoming a partner in an urbanteaching practice in Dundee in 1986.

He developed an interest in medical law and completed an MPhil in Law and Ethics in Medicine atGlasgow University in 1992. Having done some consultancy work for the Medical Protection Society andhaving taught part-time at Dundee University, hetook up a permanent appointment as a medicolegaladviser with the Medical and Dental Defence Unionof Scotland in 1996 and remained there until hemoved to the Medical Protection Society to set uptheir Edinburgh office in 2009.

In 2011 he was appointed Deputy Medical Directorand in 2013 became Medical Director of the MPS andis currently responsible for medicolegal servicesdelivered by the MPS to its members worldwide.

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