A newly published guidance on how healthcare professionals should be trained to be expert witnesses aims to ensure more consistency and better standards in the evidence provided by medical expert witnesses, says Mark Solon.

Expert witnesses play a vital part in the legal system providing informed expert opinion to assist courts in understanding technical issues.

The importance of expert opinion was made clear in the report Bearing Good Witness by Sir Liam Donaldson, former chief medical officer, which said: “The Courts need to be confident both that an appropriate witness will be available when needed and the evidence provided is of the highest quality, is based on high-quality research and represents the current state of knowledge about the issue in question.”

Until now there has been no overall guidance on how experts should be trained to be expert witnesses as well as having the right qualifications and experience in their professional field.

In May this year, the Academy of Medical Royal Colleges published Acting as an expert or professional witness, Guidance for healthcare professionals. 

Sir Norman said, “The review which I led into gross negligence manslaughter in healthcare identified problems with the expert evidence provided by healthcare professionals in both criminal and regulatory proceedings”

Carrie MacEwen, chair of the Academy of Medical Royal Colleges, said, “Being an expert witness is an important and valuable role. It is essential that clinicians acting in these roles are properly trained, fully up to date and act with complete integrity. Having this guidance endorsed by such a range of professional bodies and supported by professional regulators is a significant step. I believe this guidance will help ensure and maintain the required standards as sought by Sir Norman Williams Review.”

Interestingly, the guidance followed on from the secretary of state for health and social care setting in February 2018 the Professor Sir Norman Williams Review which was tasked to conduct a rapid policy review into the issues relating to gross negligence manslaughter in healthcare.

The review panel findings

The review was published on 11 June 2018.

This review made recommendations “to support a more just and learning culture in the healthcare system” covering:

  • the process for investigating gross negligence manslaughter;
  • reflective practice of healthcare professionals;
  • the regulation of healthcare professionals.

The review was set up to look at the wider patient safety impact of concerns among healthcare professionals that simple errors could result in prosecution for gross negligence manslaughter, even if they happen in the context of broader organisation and system failings.

However, part 8 of the review specifically looked at the use of expert witnesses.

Professor Sir Norman’s panel had heard several concerns about the quality and consistency of opinion provided by healthcare professionals acting as experts or expert witnesses. They were told that even finding the right expert can be difficult.

So, although the terms of reference were limited to gross negligence manslaughter, the panel heard evidence of more general concerns about medical experts.

The guidance recommends healthcare professionals who act as expert witnesses should undertake specific training and CPD for being an expert witness

Medical defence organisations and healthcare professionals raised concerns about “the use of experts who did not have sufficient understanding of current healthcare practice, as they had retired or worked primarily in an area that was not directly relevant to the case under consideration. In addition, there were concerns that in some cases experts provided opinion based on a ‘text-book’ approach, which failed to recognise the realities of current frontline healthcare practice.”

Other concerns raised were that expert witnesses did not have an adequate understanding of the law or their duties to the court in providing expert opinion. There was also a suggestion of “expert shopping”, seeking further views if the initial expert did not support a case.

The panel said it was clear that a number of steps were needed to improve the quality and availability of healthcare experts in both criminal and regulatory settings.

As well as having current experience in the relevant field, the panel said: “It is also vital that experts should have an appropriate understanding of their role in the legal process and of their responsibility to provide objective and unbiased opinion in an investigation or to the court. The panel believes that training should be improved in order to better prepare healthcare professionals who provide an expert opinion or appear as an expert witness. All professionals require training to practise in the fields in which they operate, and knowledge of the standards needed to do so. It is a notable omission that those putting themselves forward as suitable to provide expert evidence do not need to undergo any training or accreditation in that role.”

Healthcare professional bodies endorse guidance

The Academy of Medical Royal Colleges has now published the guidance and this has been endorsed by nine healthcare professional bodies on behalf of over 70 healthcare separate professional organisations representing doctors, dentists, nurses, midwives, pharmacists, allied health professionals, optometrists and healthcare scientists.

Importantly, the General Medical Council, Nursing and Midwifery Council, Health and Care Professions Council, General Pharmaceutical Council, General Dental Council and General Chiropractic Council have all confirmed that the advice set out in this guidance is consistent with their standards and guidance as regulatory bodies.

The guidance clearly states what healthcare professional bodies expect of their members in terms of standards, training and behaviour when acting as a witness.The guidance reflects good practice set out by other bodies and highlights the legal requirements of witnesses.

However, the aspects which are original or have been highlighted as specific responsibilities for clinicians include:

  • Healthcare professionals giving expert evidence must hold the appropriate licence to practise or registration and be in, or sufficiently recently be in, practice;
  • Healthcare professionals who act as expert witnesses should undertake specific training and continuing professional development for being an expert witness;
  • The healthcare professional must have a full understanding of the wider context of the care delivery and how it impacts on the case, including the care delivery setting (rural, tertiary care, district general hospital, independent sector, primary care etc) and the historical context and circumstances if relevant;
  • Healthcare professionals should be able to describe and explain the range or spectrum of clinical and/or professional opinion on the issue in question and indicate, with sufficient reasoning, where their own opinion fits into that spectrum;
  • Healthcare professionals acting as expert witnesses should make a self-declaration as to their scope of practice, professional development, training, special interests, areas of expertise both in general and in relation to the specific case and any conflicts of interest that could impact on their evidence;
  • If they are found to have provided misleading information after such a declaration, they could be liable to professional misconduct proceedings in addition to the possibility of any criminal sanction.

After the guidance was published, Sir Norman said, “The review which I led into gross negligence manslaughter in healthcare identified problems with the expert evidence provided by healthcare professionals in both criminal and regulatory proceedings. The review recommended the introduction of standards and better training to ensure greater consistency and higher standards in the evidence provided by medical expert witnesses.The important work taken forward by the Academy of Royal Medical Colleges, which has been agreed with organisations across the profession, is a major step forward in delivering this recommendation.”

All healthcare practitioners should read the review and guidance if they are expert witnesses or are considering becoming an expert. It is essential that experts follow the guidance for if they are in breach, there could be serious consequences.

Professional training as an expert witness is at the heart of the guidance.