Policy responses and statements
- Name of organisation:
- Department of Health
- Name of policy document:
- Bearing Good Witness - Proposals for reforming the delivery of medical expert evidence in family law cases
- Deadline for response:
- 28 February 2007
Background: The Chief Medical Officer's report 'Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases' was been launched for a period of public consultation. The report was originally commissioned in 2004 by Ministers Dr Stephen Ladyman MP and Mrs Margaret Hodge MP, in response to some very high profile court cases that called into question the quality of medical expert witnesses in certain types of case. The report makes 16 proposals.
The key proposal is that the NHS should establish teams of specialist doctors and other professionals within local NHS organisations to improve the quality of the medical expert witness service by introducing mentoring, supervision and peer review. A National Knowledge Service to support the medical expert witness programme is also proposed.
Proposals affecting the NHS will entail developing a new resource for the family courts with the challenges associated with increasing the workforce, modernising roles and regulation, and improving competence through education and training.
At present the costs of medical experts are almost entirely met from public funds, shared between the Legal Services Commission and local authorities. CMO is proposing that the NHS should be fully reimbursed for taking on this additional work, that the funds necessary to develop training packages, to form teams of medical experts and to ensure their availability to the courts should be forthcoming from legal aid sources, and covered by contract or service level agreement with local NHS providers, representing a public investment in the assurance that these services will be available without delay and with the authority that courts require.
The Department of Health invited views on the CMO's report.
COMMENTS ON
DEPARTMENT OF HEALTH
BEARING GOOD WITNESS: PROPOSALS FOR REFORMING THE DELIVERY OF MEDICAL EXPERT EVIDENCE IN FAMILY LAW CASES - A CONSULTATION
The Royal College of Physicians of Edinburgh appreciates this opportunity to comment on the Chief Medical Officer’s proposals for reforming the delivery of medical expert evidence in family law cases. It is important to ensure the highest standards of professional work in the medical contribution made to resolving cases concerning children that are considered by the family law courts. The College recognises the shortcomings of the present system in providing consistency of service, supply of experts and adequate preparation of expert witnesses in the particular skills of giving evidence in a court setting. We welcome the innovative vision that informs the proposals for reform and offer the following observations on them.
From private negotiation to public service
Fundamental to the proposals is a change from a system where individual solicitors have to identify, instruct and arrange the payment of medical expert witnesses, on the basis of a private contract. This is characterised by a situation where a small number of experts are engaged frequently, where provision of experts is patchy and where delays are common because of practitioners’ difficulty in incorporating this work into their schedule.
The report proposes instead that giving expert witness should be organised as a public service and brought closer into the mainstream of a practitioner’s experience. Teams would be created locally, under an NHS organisation, of practitioners who would develop the skills necessary to do the job well, including knowledge and facility in court appearances, and who would provide support and informal training to each other. The courts would commission the work from the NHS organisation, it would be fully funded publicly and would have its own administrative support.
To regard the provision of expert witness as a public service would signal the importance which the medical profession attaches to this work and the College welcomes this change in focus. Establishing and running the new teams will entail a considerable change in culture and workload and the transition period needs to be carefully managed.
Initially, implementation of the proposals will be uneven and there needs to be due acknowledgement of the time demanded of clinicians in order to set the system up properly. In extending the pool of people competent to take on these responsibilities, there is an opportunity to address systematically questions of how these “professional activity” costs are to be included in contracts when the workload may be variable, and what provision may be made to allow for the interruption to clinical work.
It would be possible to set up these teams as part of, or parallel to, the present Child Protection Teams, which operate in most Children’s hospitals. This would give an administrative and knowledge base from which to start as well as satisfactory geographical spread
Commissioning the service
The report outlines potential bodies for commissioning the service, each of which runs the danger of being insufficiently independent of an aspect of the process. These are the Children and Family Court Advisory and Support Service, Her Majesty’s Courts Service, the Legal Services Commission and Primary Care Trusts. The College believes there would be merit in assigning the commissioning role to CAFCASS, although this might prevent the service being extended in due course to support expert witnesses for cases beyond the Family courts.
Education and Training
The proposals also have consequences for the training of medical practitioners. The College supports the position of the Academy of Royal Medical Colleges that the training needs that are identified should be part of undergraduate training, reinforced at postgraduate level, consonant with the perspective of Modernising Medical Careers.
The College also suggests that there should be exposure in a shadowing capacity for senior speciality registrars. During consultant training in child protection, interested younger consultants should be selected or encouraged to go on to learn further forensic and court skills and join the expert team.
Accreditation
The report entertains the suggestion that it should be the team that is accredited, not (or not just) the individual practitioner, based on the model being developed by PMETB under the Joint Memorandum between the Academy of Royal Medical Colleges and the Department of Health.
This would ensure that the appropriate infrastructure, training programmes and appraisal systems were in place. These systems, when properly applied, should then assure a suitable quality of expert witness. This is more likely to produce a uniform supply of people who can conduct themselves effectively in court, than concentrating on the individual, setting examinations and giving personal accreditation, which would be much more difficult to administer and keep current.
The report also considers the accreditation of an individual expert and suggests that it should be undertaken in part by the Royal Colleges. The decision of the Court of Appeal in the Roy Meadow case would indicate that the individual expert will not be liable (at least in the UK). However, pecuniary risk could flow direct to the College, if an individual is wrongly accredited through lack of active checking of credentials or if the process fails. If the process of validation is robust, the risk is small but international, as a medical expert may give evidence in many jurisdictions. The financial risk to the Colleges should be clarified and a mechanism for underwriting their liability considered.
Conflict of interest
One of the advantages proposed for the new system is that teams would be local, on hand, and so time would be saved. While this benefit is attractive, it has to be set against the danger of the expert not being sufficiently independent from the reporting physician and running the risk of a conflict of interest.
Complaints and appeals
The report considers the question of where appeals against expert testimony should be lodged. It notes that some doctors reported that the reason they were reluctant to give expert witness was anxiety about being reported to the GMC simply for being involved in a contentious high profile case. The alternative route for an appeal would be through the courts and the Chief Medical Officer’s proposal is that the courts should be used whenever possible. However, the Roy Meadow decision gives expert witnesses immunity from civil liability but recognises the appropriateness of discipline by the GMC in the case of negligent testimony. The College regards this as an important matter on which clear guidelines should be available.
National Knowledge Service
The final proposal is that a National Knowledge Service be established to provide and support the programme, principally in the interpretation of research and statistical information. The College welcomes this approach and would encourage the development of a network to benefit from the specific expertise and evidence available to existing bodies eg SIGN and NICE.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[28 February 2007] |
