Restoring authority

Meadow, Southall - it's been open season on the expert witness, and recent guidance from the GMC has been long overdue. 

THE number of high-profile expert witnesses who have appeared before the GMC in recent years have given the media plenty of scope for vilifying experts, particularly paediatricians, who allegedly ply their trade for huge sums of money and ultimately mislead the courts and the public. The result of this has been wide reaching, particularly in the field of paediatrics where fewer experts, for fear of a complaint against them, have been willing to provide opinions. Ironically, this may mean that more children are at risk of abuse than before.

In an attempt to restore confidence and to provide the profession with sufficient guidance to ensure experts do not end up before the GMC, longawaited guidance was issued by the GMC in the summer. To put this guidance into context it is useful to consider the catalyst for it, which would appear to be the tragic and well-publicised case of the late Sally Clark.

In November 1999, Sally Clark was convicted of the murder of her two sons. She was sentenced to life for smothering her 11-week-old son, Christopher, in December 1996 and shaking Harry to death in January 1998. She was freed in January 2003. During the appeal, it emerged that crucial medical evidence which may have shown that the babies died from natural causes was not seen by the defence team or the jury in the original trial. The Court of Appeal ruled that her conviction was ‘unsafe’. It was revealed that the Home Office pathologist, Dr Alan Williams, who examined both her sons after their deaths, had failed to disclose vital information to other doctors involved in the case.

Although not involved in this case in any way, Professor David Southall, one of Britain’s leading experts on Munchausen’s syndrome by proxy, claimed the husband of cleared solicitor Sally Clark murdered their two babies. A Channel 4 Dispatches programme, broadcast in April 2000, featured an interview with Stephen Clark in which he described a nosebleed suffered by their first baby, Christopher, in a London hotel 10 days before he died in December 1996. Southall contacted the police after seeing the programme. He told them it was his view that it was Mr Clark rather than his wife who had killed the two children. He was of the view that Mr Clark had deliberately suffocated his son.

Southall filed a report stating his “near certainty” that Mr Clark, not his wife, had killed the babies and that his surviving son was unsafe in his care. He later said this was “beyond reasonable doubt”. The courts appointed another paediatrician to review Southall’s claims. The second paediatrician did not agree with Southall and the matter went no further.

Mr Clark lodged a complaint against the Professor with the GMC who subsequently found that Southall had abused his professional position. The Professional Conduct Committee held that the consultant had acted “irresponsibly, inappropriately and misleadingly” in stating that Mr Clark had deliberately suffocated his sons.

The GMC found that a theory had been stated as scientific fact and Southall had declared his report true when he was not in a position to know that. Southall admitted to the GMC that he made the allegations without seeing the case papers, medical records, post mortem results or speaking to the Clark family.

On 6 August 2004 Southall was found guilty of serious professional misconduct. The GMC told Southall that he must not engage in any aspect of child protection work either in or outside the NHS for three years. Therefore, he could continue to practise but he was not able to work in child protection.

The Council for the Regulation of Healthcare Professionals (CRHP) appealed the decision of the PCC, on the basis that the sanctions were too lenient. On 14 April 2005, the High Court imposed stricter conditions on Southall.

In September 2008, the GMC reviewed the conditions and Southall was allowed to return to child protection work. Whilst the Panel accepted that Southall was entitled to express his concerns and report his views, the language used was “inappropriate”, “injudicious” and “too strong”. Further, he was wrong to present his report in the format that he did. He was also wrong to use phrases such as “almost certain” and “beyond reasonable doubt”. He should have made clear the information on which his report was based and should have indicated his lack of access to certain information.

Before Southall’s review hearing in September 2008, the GMC guidance on Acting as an Expert Witness was published on 25 July 2008. Such guidance was called for in 2006 by the Chief Medical Officer in order to provide more specific guidance for expert witnesses as part of the Bearing Good Witness consultation. It was not until two years later, however, and with the threat of increased publicity from the impending lifting of restrictions on Southall that the guidance was finally produced.

The guidance makes clear that serious or persistent failure to follow it may put registration at risk. It has 19 paragraphs and commences with a review of the core guidance found in paragraphs 63- 67 of Good Medical Practice, which is essential reading before embarking on any report and should be read in conjunction with Acting as an Expert Witness. The key elements are:

  • You must be honest and trustworthy when writing reports and when completing or signing forms, reports and other documents.
  • You must always be honest about your experience, qualifications and position, particularly when applying for posts.
  • You must do your best to make sure that any documents you write or sign are not false or misleading. This means that you must take reasonable steps to verify the information in the documents, and that you must not deliberately leave out relevant information.
  • If you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay.
  • If you are asked to give evidence or act as a witness in litigation or formal inquiries, you must be honest in all your spoken and written statements. You must make clear the limits of your knowledge or competence.

These core principals are developed and enhanced in the new guidance which commences with a clear statement on the paramount importance of probity.

The remainder of Acting as an Expert Witness expands upon the themes identified in Good Medical Practice and covers inadequate instructions, providing accurate expert advice and evidencebased reports, and changing views on a material matter. In particular the guidance calls for experts to:

  • deal with matters and express opinions that fall within the limits of professional competence
  • give balanced opinions and state the facts or assumptions on which these are based along with the range of opinion
  • ensure that any written report or evidence given is accurate, complete and not misleading
  • explain any limitations to your advice or opinion such as that given regarding an individual who has not been consulted with or examined.

It is to be hoped that the guidance will give clarity to those who act as experts and provide such a necessary service to the judicial system. It is clear that the GMC is keen to encourage the profession in general by introducing the guidance in conjunction with a statement on its website entitled ‘Could you be an expert witness?’. This gives further advice to experts and is a helpful companion to the new guidance.

For those considering developing and expanding their career as an expert, there is now a plethora of guidance available which should be considered closely before embarking on this role. Equally, those who have provided reports in the past would be well advised to review their practice and ensure compliance. It can only be hoped that the revamped GMC guidance will have the effect of restoring confidence in experts and encouraging them to continue to provide the essential role they play in the judicial process.

  • Lindsey McGregor is a solicitor with MDDUS

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