The chief medical officer wants individual medical experts to be replaced by teams approved by a public body – but training and costs may be a problem, reports Grania Langdon-Down


The Chief Medical Officer, Sir Liam Donaldson, last month proposed establishing teams of doctors and healthcare professionals within NHS trusts to provide an expert witness service for public law cases – prompting one lawyer to comment, ‘you’ll need an extra-large witness box’.



Sir Liam was asked to report on the use of expert witnesses after a series of high-profile convictions, including that of solicitor Sally Clark for killing her two sons, were later overturned because of flawed expert evidence.



His proposals come amid unease about the role of expert witnesses. The Court of Appeal recently upheld a High Court decision that Professor Sir Roy Meadow, whose statistical evidence in the Sally Clark case was later found to be grossly misleading, had made an honest mistake and was not guilty of serious professional misconduct.



However, the appeal judges went on to overturn the High Court ruling that expert witnesses should be exempt from disciplinary action by their professional body unless referred by the court.



The Criminal Cases Review Commission is currently re-examining nine murder and manslaughter cases, including that of Lin and Megan Russell’s killer Michael Stone, following criticism of the work of former Home Office pathologist Dr Michael Heath. He resigned from the Home Office register after the Advisory Board for Forensic Pathology criticised his post-mortem examination in two separate murder cases.



Conflicting expert evidence was also at the centre of the trial of the young mother who was recently cleared by a jury of killing her 15-month-old son by poisoning him with salt.



Sir Liam’s report, Bearing Good Witness, calls for responses by February. He is proposing a radical change which would see an end to solicitors paying individual experts. Under the new system, a public sector ‘commissioning organisation’, such as the Legal Services Commission or the Children and Family Court Advisory and Support Service (CAFCASS), would reach an agreement with NHS bodies to provide a medical expert witness service on a local or regional basis.



The expertise would be delivered by speciality or multi-disciplinary teams, rather than individually named clinicians. However, the report says this would not preclude parties in a case asking for an expert from outside the area or for one working as a private individual.



Sir Liam sets out a stark choice: ‘I recognise that making these changes will not be straightforward and will take time. However, I believe that, without them, we will not be able to ensure a supply of competent medical expert witnesses to the courts in the future.’



But some solicitors question whether these proposals will really help. Sushma MacGeoch, professional negligence partner at City firm Kennedys, says: ‘The use of teams of clinicians aims to avoid risks involved in a court determination based on the views of an individual expert. But it is likely to raise a number of concerns. A “team” expert report will result in all those contributing to the report being called to give evidence in court. Not only will this substantially increase the costs, but it will also place a huge burden on court time.’



Solicitor Linda Lee is lawyers’ services manager at not-for-profit organisation Action against Medical Accidents, which maintains an experts database. She also feels team working could prove difficult – ‘this is not how the courts work’.



Georgina Fletcher-Cooke, a former senior civil servant at the Department of Health, has been advising Sir Liam on the proposals. She acknowledges lawyers’ concerns, but says team working would help support younger doctors, who would learn from more experienced colleagues how to write reports and give evidence.



If a case goes to court, the most appropriate person would go and take responsibility for the report, she explains. ‘However, supposing you had a broken limb and the paediatrician producing the report incorporated an opinion from a radiologist and that proved to be the point at issue, then the lawyers would be able to call the radiologist.’



James Badenoch QC, chairman of the Expert Witness Institute, says team working will not necessarily cause problems. ‘It’s long been known that accountants’ reports involve a lot of people’s work, but one senior person puts their name to it and attests to it in court. However, where parents are facing having their children taken away from them, there may be elements of the report that the defence will want to pursue.’



He welcomes Sir Liam’s recognition that there need to be more doctors and more resources for expert witness training, but he says the proposals are a ‘pipe-dream’. He explains: ‘What worries paediatricians and lawyers is that some young doctors are so horrified by the thought of entering the machinery of child protection cases that they may even be subtly overlooking signs in babies and young children which in the past would have led them to initiate the process.



‘None of these proposals will renew the enthusiasm among entrant paediatricians or those seeking consultancy to apply for the jobs that involve child protection.’



One key issue in any revised system will be cost. The Chief Medical Officer says providing medical expert evidence in public law cases should be a public service rather than private fee-paying work. While the NHS should not make a profit out of the service, the additional workload and costs for training and development would have to be fully met.



The report estimates that the current average cost of an expert per case is £2,000, with the annual total thought to be around £20 million. It anticipates that ‘there would no longer be a need for public funds to pay the very high fees that are currently charged by a few medical expert witnesses’.



Recently appointed solicitor QC June Venters, managing partner of London firm Venters and a recorder, specialises in public law cases. She says Sir Liam’s proposals have ‘merit’, but she argues that the estimates are too low. ‘In some cases, you can have as many as six-plus experts, while experts’ fees for family placements and residential assessments can be as much as £40,000.



‘However, it is absolutely right that solicitors should not have to pay experts out of money allocated for legal aid, particularly when there are no proper controls on the costs. What I want to see is experts having a separate place in the justice system, with a new fund specifically allocated for their fees.’



The report also raises the question of how experts should be accredited. Leading barrister Michael Mansfield QC called for an independent body to accredit expert witnesses to guard against miscarriages of justice at a recent expert witness conference in London, hosted by witness training specialists Bond Solon (see [2006] Gazette, 9 November, 4).



However, Mr Badenoch dismisses the idea: ‘Accreditation can add a certificate that the professional has submitted to a sensible type of training about what the law requires of an expert. But the idea that it will demonstrate that this paediatrician is a good one and that one is not is bizarre. It is typical of the “something must be done” syndrome. If you take the case of Professor Meadow – he would have been accredited instantly; he was at the top of his field.’



Solicitor Mark Solon, co-founder of Bond Solon, adds: ‘There is already a plethora of accrediting bodies. My view is that the professional bodies should have a sub-set of members who put themselves forward as expert witnesses. The professional body can then accredit them as it knows its membership, it can discipline them if they don’t come up to standard, and it can set up mentoring and training programmes.’



Another difficult issue is experts’ immunity from prosecution in relation to the evidence they give. Ms MacGeoch points out that experts are the only professionals involved in litigation who enjoy immunity from suit, and there is an argument that it should be lifted altogether so that they can be held accountable.



However, Mr Badenoch says experts are already put under great pressure because of vexatious clients who complain to the General Medical Council when they do not like a report. ‘But the message from the Court of Appeal is that you have to do something absolutely awful before you could ever be guilty of a disciplinary offence.



‘At the end of a trial, there is always one expert whose opinion hasn’t been preferred and the judge may even hold that they got it wrong. But that is not an offence. Provided that the expert’s opinion is diligently researched, honestly held and impartially presented, they have nothing to fear from professional discipline.’



He says that ensuring experts can be disciplined was necessary to restore public confidence. ‘The demonisation of experts by the media has given the public a false impression that experts are villains prepared to say anything for money. But experts are vital to justice.’



Grania Langdon-Down is a freelance journalist