New guidance for expert witnesses

DOCTORS who plan to serve as expert witnesses should first undergo medico-legal training, according to new guidance from the Royal College of Surgeons of England.

This can help avoid common pitfalls such as inconsistencies in reports and the temptation to argue with legal counsel. Other common errors highlighted in the guidelines include taking on a case outside your experience or expertise, and inadvertent confidentiality breaches.

Serving as an expert witness, the College said, can be a "fascinating and intellectually stimulating experience". But it acknowledged that "expert witness testimony is faced with increased legal scrutiny in clinical negligence litigation".

Doctors are now subject to new recommendations that emerged from the independent review of gross negligence manslaughter and culpable homicide, commissioned by the GMC in 2018. These were designed to establish a witness’ competence and to clarify their reasons for stating that the conduct of the clinician in question fell below reasonable standards.

The guidance provides practical advice on the nature and scope of the expert’s role and how this differs in civil and criminal proceedings. It addresses some of the main legal and ethical requirements for expert witnesses, and gives advice on how to assess evidence, how to avoid common errors and how to navigate the different positions of the court, jury and solicitors.

Some of the practical advice the guidance offers includes:

• Understand the risk of acting as an expert witness outside your specialty
•  Resist becoming adversarial in the face of opposing barristers
• Remain consistent in your written report and oral evidence
• Seek essential training before acting as an expert witness in a criminal case
• Beware of 'expert shopping' where a view favourable to one side is sought.

It issues a clear statement to doctors of the importance of training, saying: "The witness box is a lonely and intimidating place; it is hard to overestimate the value of prior training in the required etiquette, formalities and survival techniques when faced with counsel."

It also warns witnesses not to give opinions to the jury on questions they are not entitled to answer. "For example, a surgical expert would be entitled, if asked, to assert whether or not a surgeon’s conduct (related to a criminal case) equated to substandard care, but whether or not that care was 'exceptionally bad', which can lead to manslaughter charges, would be for the jury to decide. While the Crown Prosecution Service might pose such a question (hoping for an affirmative reply), the expert should not answer it, since their role is restricted to the binary question: substandard care or not."

The College also offers guidance on a surgeon’s experience, recommending that those with less than five years’ experience as a consultant, and those who have retired more than three years ago, should not act as witnesses.

Read the guidance in full here