MAPS Medical managing director, David Stothard, analyses responses to The Times Bond Solon Expert Witness Survey 2022, with help from MAPS Medical adviser, Dr Bina Palmer, and MAPS Medical trustee and Expert Witness Institute board member, Peter Mulhern.
Each year, Bond Solon runs an Expert Witness Survey in collaboration with The Times newspaper. It is the only national survey of its kind. Its 2022 survey was published on 3 November 2022 to coincide with its annual conference.
The survey always contains a wealth of information which is valuable to those of us who work in this sector, and warrants careful consideration. This year’s survey was no exception, but we want to focus on two questions and the answers they received.
Question four of the survey was: Do you think professional bodies provide enough training and guidance for members who act as expert witnesses?
There were 633 responses to question four, 268 (50.3%) answered ‘Yes’, and 265 (49.7%) said ‘No’. There is not a lot which can be made of that; respondents were basically equally divided.
Bond Solon claimed it could be argued that “additional training and guidance forms part of [professional bodies’] responsibility to ensure quality of the services conducted by their members acting in their primary role”. It calls for professional bodies to recognise and take action by forming partnerships with existing training organisations or creating in-house training divisions.
However, the follow up question was: What additional measures could professional bodies provide? This was a free text reply question, so the answers in the survey were provided in full. We have spent some time looking at those answers, analysing and categorising them to enable us to offer some insight into what expert witnesses thought when they answered the earlier question.
More than 300 separate free text replies were included in the published survey results. We have tried to categorise them according to what was said. Inevitably, there is some scope for interpretation in doing this, as some respondents answered with a single word, while others wrote a paragraph covering multiple points. Where more than one point was made, we have categorised the response on each separate point made, so that the total number of points made is different to the total number of replies.
What did the expert witnesses who responded to the survey think that their professional bodies could provide in addition in this context?
- Training and CPD – particularly specific to their professional role; possibly discounted or free as part of the professional membership (144 responses).
- Accreditation, including a code of behaviour, standards, qualifications, and censure for breach (56 responses).
- Active recruitment into expert witness work as part of [medical] training, with specialist qualification, so training from beginners to continuing revalidation (56 responses).
- Guidance or a guidebook (35 responses).
- Support across a wide range of issues including administration, indemnity insurance, tax advice, GDPR advice, peer support and review, mentoring, an advice hotline (32 responses).
- Maintain a register of expert witnesses (14 responses).
- Legal case reports and updates (8 responses).
- Increased awareness and clarity of the role (4 responses).
One point which was made by several medical experts was that such a role was outside the Charter of the Royal Colleges and beyond the statutory remit of the GMC. However, it is interesting that both the RCS and BPS already offer guidance and training for members. The GMC also offers its own guidance. It may interpret its role differently to the survey respondents and it is not our purpose here to seek to identify who is correct.
There is also the question of the role of the Academy of Medical Royal Colleges as the membership body for the UK and Ireland’s 24 medical royal colleges and faculties. The Academy already has the leading role in medical education and professional development, setting the standards for post-graduation development and revalidation. It is arguably best placed to address issues related to training and CPD to ensure uniformity. The Academy previously highlighted the importance of those issues in its 2019 guidance for medical expert witnesses.
The challenge for any current regulator or similar body, is that their responsibilities tend to be very wide, and they have numerous competing significant priorities. In that context, it is not surprising that they have not prioritised the requirements of the relatively small proportion of members who undertake medico-legal expert witness work, usually as a secondary role. They may argue that giving some guidance, identifying some issues, and signposting to some available training, are as much as can be reasonably expected of them.
There is also an important distinction between the role of the clinical regulator and the courts as legal decision makers in each case. One might assume that most medical expert witnesses are looking to their professional bodies to be able to offer reassurance that they are qualified to give expert evidence in a legal case. However, they understand that the arbiter of that will be the court and, specifically, the judge who hears the expert witness give their evidence in the case in which they have been instructed. A failure to meet the court’s expectations of them as an expert witness can have regulatory and professional consequences for the doctor (see for example the case of Dr Bux). That is completely different to a judge preferring the evidence of one expert witness to another, but the matter can become conflated when the judge makes that choice based on some criticism of the expert witness and how they presented their evidence. The expert witness wants to know that they gave a good professional account of themselves, even if the judge preferred the evidence given by the expert for the opposing party in the case.
In the absence of a dedicated specialist regulator for expert witnesses as a genus, various bodies offer academically validated certified training and accreditation. For example, the EWI, Inspire Medilaw, and of course, Bond Solon itself, all offer high quality training for those experts who wish to demonstrate their commitment to quality in this sector by formal qualification. Other organisations offer a range of CPD training and elsewhere there is guidance, advice and even regular journals, such as the Medico–Legal Magazine and the Medico-Legal Society Journal. Several other organisations offer directories of expert witnesses.
What no one has been able to do is to offer a consistent standard to all of this to assist the expert witnesses, those who instruct them, or the courts who hear their evidence. In the absence of specific regulatory control, there is little uniformity to each of the various offerings and, inevitably, different standards are applied by each provider. Each expert witness is left to consider what is appropriate to them for their area of expertise and follow that through with learning, development, CPD and networking to enable them to satisfy their identified requirements. The appraisal process for doctors does at least ensure that some focus is brought to this area of each doctor’s scope of practice, although this is inevitably far smaller than the focus on their clinical work.
There is no ‘right’ answer to this situation in our experience. A ‘good’ expert witness is one who takes their responsibilities as an expert witness seriously, which goes far beyond their established clinical expertise. Each expert may do that in a different way and choose different means by which to demonstrate and maintain their expertise. The mere fact that they turn their mind to these issues and undertake activities to address them is a strong indicator of their commitment to professionalism as an expert witness. Given the range of experts who give evidence before the courts, the simplest universal mantra is to know the rules and comply with them. Any expert who does that seriously is very unlikely to go wrong.