Clinician expert witnesses take the stand

Abstract

Being an expert witness in a legal trial can be a lucrative business for doctors. But who determines whether a clinician is suitably “expert”? Hannah Brown examines the implications of recent court cases in the UK and asks whether formal accreditation procedures are needed. A series of high-profile cases in which doctors have been investigated by the UK General Medical Council (GMC) for their conduct as expert witnesses has prompted an intense debate over the use of medical testimony in court. Among the most prominent of the GMC's cases is the current proceedings against Roy Meadow, a professor of paediatrics, who is accused of giving misleading evidence in the 1999 trial of Sally Clark, a mother convicted of murdering her two sons. Paradoxically, while the discrediting of Meadow's witness testimony has led commentators to question the reliability of medical evidence given in court, the judgment of the UK Court of Appeal on another case in which Meadow was involved—that of Angela Cannings, like Clark, a mother convicted of killing her two sons—has effectively made it possible for future defence teams to use faulty medical theory to help guilty people escape prison. Jose Miola, an academic medical lawyer from Leicester University explains: “The Cannings appeal judgment said that if the case is based primarily on medical evidence, and the defence is able to provide an expert supporting the defence case, then that in itself is sufficient to exonerate the defendant.” Although this ruling is a specific reaction to evidence given by Meadow, Miola believes it has major implications for use of medical testimony in all court cases. In future, he explains, it will be far more difficult to convict people when there is medical uncertainty. And this could mean guilty individuals go free. The debate over how to ensure adequate scrutiny of scientific testimony has been fuelled by a parliamentary investigation into the use of forensic evidence in court. A report by the UK Science and Technology Committee, published at the end of March this year, identified “several flaws” in the way courts handle scientific testimony and expressed concern over the lack of safeguards to prevent miscarriages of justice. The report calls for a Scientific Review Committee to be established to allow for “ongoing scrutiny of expert evidence and improve communication between the scientific and legal communities”. However, the huge number of court cases in which medical experts play a part provide ample justification for a rigorous system of checking the validity of the scientific evidence they present. All civil cases dealing with a medical area have an expert report attached to them and in criminal cases, if there is a medical component, an expert opinion is essential. Currently, these two courts handle expert testimony in very different ways. Civil courts have made some tentative steps towards a more rigorous approach to medical evidence following a 1996 report by Lord Woolf, then Master of the Rolls, called Access to Justice. Woolf noted that the system in existence at the time was an insurmountable hurdle for plaintiffs trying to claim compensation for medical negligence, and concluded that it could lead to incorrect judgments. The law said a doctor could not be found guilty if he had acted in a manner accepted as proper by a responsible body of medical men skilled in that particular art. “This meant, in the words of one medical professional that I spoke to once, ‘get two of your mates to agree with you and you're fine’,” Miola explains. Since the Woolf report's recommendations were implemented, evidence provided for the defence must at least have a logical basis, and a judge can even require the experts to go away and try to agree on points of disagreement. In the criminal courts, however, there is no such provision. The Cannings judgment lowered the level of evidence required to exonerate a defendant, and therefore, says Miola, was like “throwing the baby out with the bathwater”. Although this loophole may have a negative effect on future cases, and potentially allow miscarriages of justice by allowing guilty people to go free, it cannot be corrected unless another case highlights problems with the judgment. “It is a kneejerk reaction by the courts”, says Miola. “Next time this issue comes up, the courts may well recognise the negative consequences and effectively disregard [the Cannings judgment] but we won't know until a case actually comes up”. For expert witnesses, this uncertainty means more scrutiny of their profession, both in court and out. Michael Cohen, Chairman Emeritus of the Academy of Experts, an organisation that vets expert witnesses and provides training services to help improve their performance, believes this attention might help address the problem with low standards that currently plague the profession. “High profile cases make people much more aware of the problem”, he says. But it also makes the flaws more obvious enabling unscrupulous barristers or witnesses to abuse loopholes. This is why, Cohen asserts, the system of expert witness testimony needs an overhaul. But how to ensure better standards is a difficult question. Cohen's organisation routinely vets expert witnesses that apply to be listed in its online directory. But numerous other directories exist with variable entry requirements—some have no criteria for entry beyond paying a fee. The Law Society says solicitors or barristers seeking an expert are free to use any one of numerous sources to find appropriate individuals—they may even just go on a word of mouth recommendation from a colleague. “[These sources] are not necessarily bad, but you can't be sure that they are good either”, says Cohen. William Hulse, a consultant in accident and emergency medicine who has been doing both civil and criminal expert-witness work during the past 15 years, says even informal vetting of expert witnesses is a relatively new development. “In 1991, solicitors would just write and ask you for a report because the patient they were interested in was being treated at the hospital”, he explains. “I used to just write it, send it off with a bill, and was a bit surprised that they paid it.” Now, however, he says doctors thinking of becoming an expert witness must invest substantial amounts of time and effort getting training because solicitors and barristers expect much more knowledge of legal processes among experts than they used to. But in the absence of an explicit requirement for experts to seek training, the quality of witnesses that do court work remains hugely variable. And although the adversarial system in the UK ensures rigorous standards in one respect by subjecting experts to a barrage of questions from barristers on both sides, this probing does not necessarily tackle points of scientific contention and could end up being a personal attack. “Basically anything goes”, says Hulse. Miola believes adversarial scrutiny does not necessarily lead to better judgments in scientific arguments. “It is not about the two barristers trying to find the truth, it is about the two barristers trying to beat each other”, he says. “They are trying to get the best result for their client, not the best result for justice.” Formal accreditation—by a professional body, for instance—could prevent unreliable witnesses making it to court. But Hulse believes this may act as a disincentive to doctors to take on court work—and could prove bad for court judgments. “I think doctors are groaning at the thought of this”, he says. “You've got appraisals at work, you've potentially got the GMC reappraisal coming in, and then if you want to do expert-witness work you are going to have to do that accreditation as well”. Strict requirements could, according to Hulse, lead to a situation in which only a few people—those with enough spare time to do the training—do most of the legal work, which would be a corrupting influence in judgments. “You could have lots of hoops for people to jump through to improve the standard, but the expert witness would then become professional expert witnesses rather than people who are expert because of the status that they have in their clinical role”, he says. David Barnet, a consultant in diabetes and endocrinology at St James' hospitals in Leeds agrees that continuing clinical work is essential for medical expert witnesses: “Whatever discipline you are in, the only real way to keep up to date is to be practising in it”, he says. Financial conflicts of interest are also an issue for doctors who earn a lot of money through legal work, particularly if they work just for one or two solicitors. In the absence of a method of validating the credibility of witnesses, should the GMC, the regulatory body for UK doctors, have a greater role in disciplining doctors who perform poorly in court? Cohen doesn't think so. “The GMC's primary job is to regulate the professional activities of doctors. When it comes to regulating how somebody works as an expert, that is in the courts jurisdiction”, he says. The The only way to improve standards across the board among medical expert witnesses is for courts to expect and demand higher standards. “If they accept low standards, that is what they will get”, says Cohen. Miola agrees that neither accreditation or stricter disciplinary measures will solve the problem of simple human mistakes made by experts when under pressure in court. “The problem isn't with malicious experts, the problem is with experts who simply get something wrong”, he explains. Focusing on the qualifications, standing, and individual credibility of witnesses means that attention is taken away from the evidence itself. “My personal view is that you need to engage with the evidence itself, rather than with the person who's giving that evidence”, he says. “The worst scientist in the world might be right, while the best scientist in the world is wrong on one occasion. That's why you need to look at the evidence itself rather than who is giving it.”