JRSM >
Volume 99, Number 5 >
Pp. 217-218
Honorary Senior Lecturer, University Hospitals of Leicester, UK
E-mail: ash.samanta{at}uhl-tr.nhs.uk
Professor Sir Roy Meadow recently won his appeal in the High Court against a determination of serious professional misconduct made by a `fitness to practise' panel of the General Medical Council (GMC).1 Professor Meadow, an eminent paediatrician, was the medical expert who gave evidence in the case that led to Sally Clark's conviction for murder.2 His evidence was flawed—there was a statistical error. On appeal, Mr Justice Collins found that Meadow had given evidence in good faith, with no intention to mislead. However, he had made one technical mistake, which was to misunderstand and misinterpret statistics. The judge ruled that the GMC was wrong to make a finding of serious professional misconduct and to impose the ultimate sanction of erasure from the medical register. The rationale underlying this judgement is the principle of `witness immunity'. In a carefully reasoned analysis, he set out the history of the witness immunity rule (which is established in relation to civil proceedings), and stressed its fundamental importance because:
`... the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled or impecunious person against whom they give evidence might subsequently involve them in costly litigation.'1
The principle has now been extended to disciplinary proceedings. This is a welcome ruling for paediatricians involved in child protection work and all medical experts. They can now feel confident that they may give evidence in court openly and without fear. It is also a positive decision for the GMC and other regulators, as it will help clarify their part in disciplinary proceedings against experts.
Professor Alan Craft, the President of the Royal College of Paediatrics and Child Health, stated that the campaign against doctors in the field of child abuse had a hugely detrimental effect on paediatricians getting involved in child protection work.1 This is made all the more acute if there is a fear of being reported for a disciplinary hearing, even when there has been no intention to mislead. In the USA, providers of care to children are required by law to report suspected child abuse or neglect; and these laws afford protection to those reporting in good faith.3 In this country, however, child-protection work has often attracted vilification and attacks on named paediatricians.4
Many doctors have silently withdrawn from acting as medical experts for fear of subsequent accusations.5 The decision in Professor Meadow's case has increased the reluctance of medical practitioners to involve themselves in court proceedings. The exodus of experts is driven by the fear of loss of livelihood.5 A civil action for negligence (if proven) might even result in a financial penalty for the expert. An equivalent disciplinary action could result in erasure from the medical register and the loss of livelihood. Expert witnesses should not be threatened by such consequences, provided that their evidence has been given honestly and reasonably. This principle underlies expert witness immunity from civil suit. Should it then not extend to disciplinary action when the effects of the disciplinary sanction can be even more severe? It is only logical that public policy, based on the need to protect the administration of justice, should also be extended to prevent disciplinary procedures. Mr Justice Collins' judgement should help to reassure paediatricians and medical experts that they can provide reports for the courts and give evidence honestly and in good faith without fear of recriminations and retributions on account of their opinion being controversial.
Experts must always bear in mind that their primary duty is to the court. They:
These `ground rules' can be found in case law,7 guidance from the Civil Justice Council,8 the Expert Witness Institute9 and the Crown Prosecution Service.10
An expert's overriding duty is to the court. Judges are able to evaluate an expert's demeanour and credit, and may, if necessary, charge an expert with contempt of court, perjury or make a wasted costs order.11 A judge may also refer an expert to a regulatory body for honest but seriously deficient evidence.6 Should serious defects in the expert's evidence come to light following a hearing, it is possible to go back to the judge for referral (or take action at appeal). The need to refer an expert to a disciplinary body should be so remote as to be virtually non-existent.1
There is a view that Mr Justice Collins' judgement represents a `judicial blow for commonsense'.12 The GMC has a statutory duty to ensure good medical practice and to deal firmly and fairly with doctors whose fitness to practice is questioned. There is a concern that by granting a witness immunity from disciplinary procedures, doctors might be placed beyond the reach of their regulator when giving evidence. The GMC whilst recognizing this decision `to be a welcome contribution in a very vexed area of the law' has sought leave to appeal the principle of extending witness immunity to disciplinary action.14 The statutory power of the GMC to protect, promote and maintain health and safety of the public must be balanced against the advantage conferred by witness immunity for the administration of justice. The GMC's appeal will clarify the process and threshold for investigating cases involving expert witnesses.
Witness immunity is supposed to benefit the public by assisting the judicial process. The duties of the expert are well defined; a trial judge can refer an expert to a regulator if he fails to fulfil his obligations. Given the importance of Mr Justice Collins' judgement for the GMC and other regulators, it is reassuring to know that this decision will be subjected to scrutiny by the Court of Appeal. The result is awaited with interest. Should his judgement be reversed, it might well prove to be a backward step for public policy in the longer term.
Footnotes
Competing interests AS is an associate member of the GMC and sits on fitness to practice panels. The opinions expressed in this article represent the author's personal views, and do not in any way reflect those of the GMC, or any other organization.
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