Copy

Giles Eyre looks at the recent case of Pool v General Medical Council, and considers from the lawyer’s viewpoint, the dangers of instructing the inadequate expert, or, from the expert’s viewpoint, accepting instructions as an expert if expertise may be open to challenge. 
 
An expert can be defined as “a person expert in [a] subject” and the adjective expert as meaning “highly practised and skilful, or well-informed, in [a] subject”.[1]  A clinician providing expert evidence in court (or professional regulatory) proceedings may subsequently have to justify that status – as an expert – to the clinician’s “fitness to practise” regulatory panel.  In Pool v General Medical Council [2] the Administrative Court on an appeal upheld the findings of a GMC “fitness to practise” panel in considering what amounted to being “an expert”.
 
A psychiatrist (“P”) had been instructed to provide an expert opinion on the fitness to practise of a paramedic in the light of her psychiatric condition (a diagnosis of personality disorder and PTSD following abuse in childhood).  The Health Professions Council (“HPC”) refused to admit P’s expert evidence at the hearing and P was subsequently referred to the GMC.
 
P was on the specialist register for Psychiatry in Learning Disability, but not for Adult Psychiatry.  He had experience of general adult psychiatric issues when a senior houseman, but subsequently had worked in secure hospitals where patients included females who had suffered sexual abuse and had been diagnosed with personality disorders and PTSD.  He claimed sufficient expertise from his experience in his work to be regarded as an expert in this context and asserted that relevant expertise can come either from formal training or from experience gained in the course of work.  Against him it was argued that he lacked day to day clinical experience in treating or researching such patients, and that the problems with which he would have had to deal in his practice would be very different from the current issue of assessing the ability of the paramedic to function in a job.
 

Experience and training


While the GMC panel accepted that a person might be equipped to act as an expert either by reason of training or by reason of day to day experience, it concluded that P was not an expert in general adult psychiatry for the combined reasons that he was not on the relevant specialist register, had not completed any higher professional training and had not worked in a relevant setting for the type of patient about whom he was providing an expert opinion.
 
Specifically the GMC panel concluded that P had no direct experience of working with patients with personality disorders in the context of “fitness to practise” proceedings, did not have the relevant knowledge or experience to assess fitness to practise, did not take appropriate steps to ensure that he understood what was required in that context, and did not assess whether he was in fact competent to undertake this assignment.  He could not therefore put himself forward as expert in the field of assessment of fitness to practise of an individual carrying out a particular role in the workplace.
 

Report writing skills


The structure of the written report he produced was also criticised, the panel finding that an important explanatory paragraph “was not clear, not sufficiently logically argued and was disjointed [and] that it was not linked to your description of A’s symptoms and behaviour earlier in the report”.  The suggestion that the report was adequate because any such lack of clarity could reasonably have been clarified by questions from the tribunal panel was firmly rejected.
 
The GMC panel observed that:

“to put oneself forward as an expert witness requires more than clinical experience and knowledge.  It also requires the ability to produce an adequate report and to give oral evidence in an authoritative and convincing manner” whereas P’s “evidence at the HPC hearing regarding your experience and expert status was confusing and unclear.  The panel does not consider that you conducted yourself at the HPC hearing as an expert witness should when giving evidence.  In your evidence to this panel you were also very unclear and often gave long, rambling, answers that did not address the question you had been asked.  This panel concludes that, whilst you had some experience in General Psychiatry, you cannot be considered to be an expert.”
 

Understanding of role


The panel noted that an expert at a tribunal hearing had a duty to be able to explain his role, and that an inability to do so was a significant failure.  Instead, when asked at the HPC to give his understanding of his role as an expert, P “gave rambling and unclear answers”.  P sought to excuse this before the GMC panel as being the result of his being shocked by being asked such questions and feeling “disorientated” by the nature of the questioning he received, but the tribunal noted that “an expert witness must expect to be questioned closely and be subject to robust examination”.
 

Seriousness of failings


Although the GMC panel was concerned with only one occasion when P’s competence as an expert was questioned, it held that this was sufficiently serious to amount to misconduct, and therefore to amount to impairment of fitness to practise, for which a sanction would be imposed, because “there is clearly a strong public interest in ensuring that doctors do not act outside their competence and do not put themselves forward as experts in areas in which they do not have adequate knowledge and expertise.”
 

Lessons to be learnt


Although this case was concerned with expert evidence in the context of a “fitness to practise” tribunal, and with expertise as a psychiatrist, it is highly relevant to expert evidence whenever and wherever it is given in proceedings.  It acts as a timely reminder of the questions which any professional instructed as an expert in proceedings should ask himself or herself, and any lawyer instructing the expert should have in the forefront of his or her mind:
  • What is the purpose for which the expert is being instructed?
  • Does the expert have sufficient qualifications, training and experience to be put forward as an expert for this purpose?
  • Does the expert understand clearly the role and responsibilities of an expert in the proceedings in which the expert is instructed?
  • Does the expert have the ability to explain and justify all opinions on the issues for which the evidence is required to a professional, but non-expert, tribunal clearly, logically and succinctly both in writing and in answer to oral questions?
  • Does the expert have adequate report writing skills for this purpose?
  • Does the expert have adequate skills to explain himself or herself and to answer challenging questions from trained advocates at a hearing?
 
These are questions which should be asked more than once – and at a minimum when instructions are first given, on completion of the report, on receipt of any opposing report and prior to any hearing.
 
An expert must be able to establish the appropriate professional credentials as an expert in the context in which instructions are being sought.  An expert must also be able to demonstrate proper understanding of the expert’s role and responsibilities, and of the skills necessary for effective report writing, through adequate training.
 
A failure on even just one occasion to demonstrate adequate expertise to justify the role as an expert in the case, adequate understanding of the role and its responsibilities, and competence in report writing skills may not only result in injustice within the proceedings and claims for damages for professional negligence but also sanctioning of the “non-expert” for impaired fitness to practice.
 
Giles Eyre
Barrister
9 Gough Square
London EC4A 3DG
 
 

About the Author


Giles is a barrister specialising in personal injury, disease and clinical negligence claims. He is mediator and a member of the CEDR Solve Lead Mediators Panel.  He was appointed a Recorder in 2004.
 
Giles is co-author of a manual for medico-legal experts and those instructing them, 'Writing Medico-Legal Reports in Civil Claims - an essential guide' (2011) (www.prosols.uk.com).   He frequently gives seminars and workshops for medical experts in medico-legal report writing, giving evidence and other medico-legal issues.
 
Giles is a contributing editor to ‘Clinical Negligence Claims - A Practical Guide’ (2011) and  ‘Asbestos Claims: Law, Practice and Procedure’ (2011), both published by 9 Gough Square. 
 
[1] Pocket Oxford dictionary
[2] [2014] EWHC 3791

9 Gough Square has won two awards at The Legal 500 Awards 2014.  Andrew Ritchie QC was named PI/Clin Neg Silk of the year and our staff were named Clerking/Practice Management (UK Wide) Team of the Year.

Copyright © 2014 Chambers of Andrew Ritchie QC, All rights reserved.