The British Medical Association’s Response to the Department of Health’s consultation: Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases
March 2007
Thank you for inviting the BMA to respond to the consultation ‘Bearing Good Witness’. We have included our comments under the following four separate headings which our members considered the most important areas outlined in the consultation document:
- Speciality or multi-disciplinary teams
- Supply and commissioning of reports
- Training and education
- Regulation and guidance.
The Chief Medical Officer (CMO) makes many assertions in his document – ‘Bearing Good Witness’ – which suggests major changes to the provision of expert evidence in the Family Division. He highlights some of the issues and ways in which they can be addressed and asserts that there is growing public unease about miscarriages of justice arising from the quality and validity of evidence provided by expert witnesses in the court. Within the document we feel there is confusion between the public unease over miscarriages of justice arising from evidence within the criminal courts rather than the family courts, to which the document is directed. We feel that the public unease has partly arisen due to the often inaccurate reporting of cases like the Sally Clarke case and Professor Sir Roy Meadow’s GMC hearing. It is therefore important to remember that the Court of Appeal found that Professor Sir Roy Meadow had not been guilty of serious professional misconduct, further; the Court of Appeal found the conviction of Angela Cannings to be unsafe due to the failure of full disclosure, not the medical evidence provided. In the Case of Trupti Patel the Court found that the evidence being used was so finely balanced and at the limits of scientific understanding that it would not be safe to rely upon it. In other words the experts concerned were indeed at the forefront of science and would still have been put forward by their peer group and likely to have had their opinions sought. They were in no way inadequate or incompetent expert witnesses as portrayed by the media.
Speciality or Multi-disciplinary teams
Currently there are named doctors and designated doctors for child protection and, usually, such doctors are called on to provide advice to courts in Child Protection cases. When other doctors are used as experts in these cases they are used because of specific expertise in the subject needed by the court (metabolic disease, trauma, gynaecology etc).
The use of multi-disciplinary teams could provide a more consistent and reliable service, however in practice our experience is that NHS turnover and staff changes lead to a lack of consistency. The combination of working with various professionals, supervision structures, clearer training processes and mutual professional support are likely to ensure greater stability. Although the maintenance of a team requires additional work from the individuals, teams may provide the reassurance required in particular to families who have both complex and chronic needs.
However it is also important to note that within ‘teams’, which might be practicable in large urban areas, away from major teaching centres, the distance between members of a similar area of expertise would involve setting up communication pathways beyond that currently available. That is not to say this would not be a desirable development.
The Chief Medical Officer is keen to form NHS teams, as he may feel this will secure guaranteed availability and accuracy, however it is important to acknowledge that teams as well as individuals can still be susceptible to errors.
If teams were to be introduced, it would be a definite advantage for “other involved professionals” to be able to attend Court as observers to gain experience and confidence. One does not become an expert over night.
Supply and Commissioning of reports
It is obvious that there is a shortage of doctors coming forward to become expert witnesses as the report in the consultation shows, of the 177 doctors surveyed, about 37% reported anxiety, worry, stress or uncertainty as being the reason why they did not act as experts in the Family Courts. Perhaps it is really the media attack of experts that has induced a ‘phobic response’, or simply that many professionals are not attracted to the idea of, in an already busy day, rushing to face a solicitor who has had the luxury of days reading the report, applying all of their training, intellect and rhetorical skills, to cross examine them in an highly challenging manner, who wishes to demolish the impact of their evidence to their clients benefit. This common reality of appearing as an expert witness in court does not necessarily appeal to many doctors who already lead highly pressured and stressful lives.
Considerations could be given to include free training if doctors agreed to complete a fixed number of court reports. Another could be to require NHS employers to give doctors increased professional leave each year to appear as witnesses. These suggestions would make a real difference to the number of doctors willing to become expert witnesses, and in addition, would not require further primary legislation.
Technically if written into a contract, supply issues should be improved but this is not a method that has solved the provisions of child protection services within the NHS. Posts designated as having an element of child protection fail to attract suitable candidates. Moreover the proposal of using teams in this document appears to be ‘ad hoc’ dependant more on what is available than what is in the child’s best interest. There is value in seeking opinion without the Childrens Services Team.
To estimate an annual workload based on case numbers can be difficult. The work per child is extremely variable and the spread of cases is uneven throughout the year. Furthermore the paediatric services are already undermanned with a high percentage of unfilled posts, particularly in the fields of child protection, community paediatrics and ‘heads’ for ‘looked after children’.
The benefits of ad hoc commissioning are that the local courts learn the strengths of individuals from whom they seek opinion and advice. Courts tend to be dismissive of opinion expressed if below consultant level, which whilst adding to problems of obtaining evidence, is appropriate as below consultant level doctors have rarely obtained recognition as specialists.
The document suggests that the burden of report writing would be reduced by a team approach. As many may appreciate, a committee report takes longer to produce than a single author piece. Setting aside the issues of increased meetings to produce a report, all done within NHS time, where there is already a shortage of consultants such that ‘New ways of working’ was required, there are other constraints.
Justice Smith and Mr Mansfield QC have both indicated that where there is a dispute about the opinion, or evidence, they would expect every author of the report to be cross-examined. When considering the travel and court time this is a significant drain on resources. In addition it is felt that reports of quality cannot necessarily be engendered by contract and indeed are likely to be reduced in quality by any such move.
It is also important to be aware that commissioning will not automatically produce quality reports. Reports are frequently delayed by problems relating to the release of medical documents. In addition, if reports are commissioned from the local team, the members are likely to have had the responsibility of care of the individual in question. This situation can ultimately put into question the validity of the entire report with regards to the level of impartiality of the author(s).
Training and Education
The CMO’s proposal that court skills be taught in under and postgraduate education is a positive step and very welcome. He acknowledges recent initiatives, such as mini-pupillages for doctors and the use of video conferencing skills to cut down on travelling times. His suggestion that the quality of instruction from the lead solicitor to the expert be improved is also welcome.
With regards to funding expert witness training, we are concerned as to where the NHS will find such resources? Particularly when the report from the Council of Heads Medical Schools suggests Strategic Health Authorities are overspent by millions and are already having to cut study leave budgets for trainee doctors. In 2006 the allocations for funds destined for education and training were passed to SHAs without ring fencing so that they might be used as the local economy saw fit. The requirement to consult and plan jointly appears to have been forgotten. SHAs across England are struggling to achieve breakeven by year end and to achieve a further £650M in savings with less than 5 months of the financial year remaining. Some have already indicated explicitly that they intend to use the Education budget to make good the operating deficits in Trusts (Workforce planning in the NHS: debate 11.10.2006, The Council of Heads Medical Schools).
37% of adult psychiatrists and 23% of child psychiatrists reported that they had had no special training to be an expert – and yet it is the expertise which the college confirmed they have (by issuing a certificate of completion of specialist training) which qualified them as an expert. Perhaps those surveyed considered the narrower role of training to give evidence in court? Strictly speaking witnesses may not be ‘trained’, but they may be familiarised with court procedures, and training programmes already exist on report writing, presentation skills for court, and coping with cross-examination. For anyone anticipating this activity they are invaluable, with adverts featuring on a recurring basis in readily available journals.
However the majority of skills in assessment & documentation are dependant on experience gained over a lifetime of working, for example there are only a limited number of “physical abuse” cases presenting to any one consultant, making rapid accumulation of expertise difficult.
Regulation and guidance
The report suggests that the quality of instruction could be improved. Should the Family Justice Council issuing practice directions for the instruction of experts, as has occurred in the civil and criminal courts then this would be achieved.
In terms of vulnerability, the judgement in the Meadows Case does place the medical experts back in the hazardous position that they were before Mr Justice Collins judgement appeared to improve their situation. However, those doctors with experience in medico-legal expert witness work have always understood the hazards and the need to be very careful drafting reports and in court work.
The General Medical Council has stated that any doctor involved in this work must be appraised in it, and would be expected to continue with their professional development in an appropriate way. Work on expanding continues with forensic practitioners, the BMA and other parties feeding back on developments. Thus the link between college standards of good medical practice in relation to legal work is explicitly recognised and easily addressed through existing channels.
Currently if performance is not adequate the ‘expert’ will simply not be instructed further, this certainly could not continue if it becomes an NHS contracted service. Members felt that Courts could improve in giving experts suitable feedback on how they have performed and if there were any possible improvements to be made. Asking Judges to promote written rather than verbal feedback would be most welcome.