In our latest article, managing director David Stothard considers the parameters and regulations an expert should follow to be sure they are properly qualified to provide evidence.
Last year, we asked the question: Regulation of expert witnesses – whose job is it anyway?. Since then, there have been some interesting and important developments which have prompted me to revisit some aspects of the issue to ask what it is that makes an expert witness.
Insights from the expert witness community
The latest Bond Solon Expert Witness Survey posed the question ‘Do you think there is a need for an additional or separate overarching regulator of expert witnesses in the justice system?’. Of the 581 respondents to that question, 311 (53.53%) said ‘no’, while the remainder said ‘yes’. This response is similar to that of the question regarding regulation in the previous year’s survey, where 51.8% of respondents were against more regulation.
However, despite respondents slightly leaning against additional regulation in this question, when answering ‘Do you think it is essential that practicing expert witnesses are registered with a recognised professional body and/or regulator and hold a current membership/registration with that body/regulator?’, 79.35% answered ‘yes’.
I believe that the difference between the two answers reflects a clear consensus amongst expert witnesses that professional registration and regulation, which are requirements of their ‘main’ role, are the correct means through which to monitor and regulate their work as an expert witness.
Regulation for medical expert witnesses
For medical expert witnesses, the GMC is their regulator, but being registered with the GMC may not be the end of the story. To work as a doctor in the UK, a doctor must not only be registered with the GMC, but must also have a licence to practise. Unregistered medical practice is illegal.
However, there has been a debate about whether a licence to practise is required for a doctor to undertake work as an expert witness. In the past, the GMC guidance was often interpreted as being that medico-legal reporting as an expert witness was not medical treatment and so did not require a licence to practice.
The position is different now as the GMC has been much clearer about its expectations. It has said that many medico-legal reports are based on a clinical examination for current condition and prognosis, and that there is an expectation for all doctors with direct clinical contact with patients to be licenced. It takes the point further by adding that, unless great care is taken, there is a risk that fully-informed patient consent to undergo the clinical examination could be challenged, even if the doctor routinely mentions to patients that they are “no longer licensed to prescribe”. That, in turn, could raise a question of probity, and if such criticism is upheld it could put the doctor’s registration as a medical practitioner in jeopardy.
Guidance from the Academy of Medical Royal Colleges
The Academy of Medical Royal Colleges takes the matter further in its 2019 guidance for all healthcare professionals ‘Acting as an expert or professional witness’. This issued authoritative guidance on behalf of not only their membership (being the UK and Ireland’s 24 medical royal colleges and faculties), but also almost every other possible associated health professional organisation one can think of. Its position is that it expects healthcare professionals giving expert evidence to hold the appropriate licence to practise/registration and be in, or sufficiently recently in, practice. And, that this is essential if producing a report from direct assessment and/or examination of the patient.
The only exception the academy identifies is if there are circumstances where this is not the case, the healthcare professional must be able to demonstrate why it is appropriate for them to still act as a witness and that they have maintained the appropriate expertise. If the case relates to historical events, the healthcare professional should ideally have been in practice at the time of the events in question or be able to demonstrate understanding of the standards applicable at the time and the context of the incident.
As to what ‘sufficiently recently’ in practice means, the academy does not give an answer. We have seen different assessments of this. For example, guidance from the Royal College of Surgeons (again in 2019) says that this should be less than three years from the date upon which the consultant retired, but we have also heard Court of Appeal judge Lady Justice Nicola Davies say1 with some force that no more than five years from the date on which the expert left clinical practice, is acceptable.
Ultimately, this is a question for the courts and, more specifically, for the judge in the particular case being decided. CPR art 35 does not say anything specific about these points, nor does Practice Direction 35 or any of the relevant pre action protocols. Two recent family law cases dealing with expert evidence from psychologists show how the question of regulated or registered expertise can play out in different circumstances.
Cases to consider
M v F & Anor
In M v F & Anor [2022] EWFC 186, the judge had to address the question of whether Dr X, an eminent academic chartered psychologist specialising in forensic psychology rather than a clinical psychologist qualified to make a diagnosis, was able to offer expert opinion in a case requiring a ‘full psychological assessment’. In essence, the judge concluded that the wrong expert had been instructed, although they had been able to make use of Dr X’s expertise to reach a sound conclusion in the case.
Strangely, the case went further with another judgment being issued, M v F & Anor [2023] EWFC 53, to deal with the issues arising from having circulated the original judgment in draft to the parties and Dr X before handing it down. Dr X responded in such a strong and strongly worded way towards the judgment that the second judgment was required to deal with all the points made by them, despite there being no issues raised by the parties to the case. However, the judge concluded that Dr X’s response demonstrated disrespect for the court and was particularly baffling given that the judge concluded – and stated explicitly – that Dr X did have suitable expertise, that their evidence was helpful and that the judge relied upon it.
Re C (‘Parental Alienation’: Instruction of Expert)
That judgment had been delayed pending the judgment in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam), delivered by the president of the family division, Sir Andrew McFarlane. One of the key points he had to deal with was the allegation that the expert psychologist who was instructed in the proceedings, Ms A, should never have been instructed as she was ‘unqualified’ to give expert evidence on the issues raised in her instructions. The appeal hearing included submissions from leading counsel on behalf of the Association of Clinical Psychologists – UK (ACP). The ACP is not a regulatory body. The relevant regulatory body is the Health and Care Professions Council (HCPC) which declined to intervene in the appeal. The court had recognised that there was legitimate debate as to the meaning of the label ‘psychologist’ and that it remains open for a court to appoint a ‘psychologist’ who is not a chartered member of the British Psychological Society or otherwise registered with the HCPC.
At paragraph two of its second (lengthy and seemingly ill-judged) skeleton argument, the ACP acknowledged that there is no definition of ‘expert’ for the purposes of family proceedings, and no definition of ‘psychologist’, beyond the seven specific titles which have statutory protection. These concessions were followed by the important concession: “Whether a person is capable of assisting the court by providing expert evidence is therefore a question of fact, not law”. While the judge held that the open-house nature of the term ‘psychologist’ is unhelpful and potentially confusing, it is, ultimately, a matter for the psychological profession and parliament as to whether a tighter regime should be imposed.
Quoting the HCPC’s letter, declining to intervene, McFarlane LJ noted:
“The broad use of the term ‘psychologist’ is not a protected title. Beyond the HCPC’s protected titles, any person may call themselves a psychologist. Because the functions of practitioner psychologists are not protected, they may practice as such without the need for registration. With no restriction on the use of the title ‘psychologist’ itself, there is nothing the HCPC can do about individuals undertaking the same work as registrants but who simply avoid using a protected title.
“On 1 July 2022, [the HCPC] wrote to the director of workforce at the Department of Health and Social Care to highlight the risks presented by unregulated psychologists including in relation to the provision by them of expert evidence in court proceedings. As noted above, it is ultimately a matter for the government to determine which roles should be subject to statutory regulation.”
The judge went on to say that in the future, in every case the court should identify whether a proposed expert is HCPC registered and that a sensible practice, where the expert is un-registered, would be for the court to indicate in a short judgment why it is, nevertheless, appropriate to instruct them.
He then went on to make some very interesting comments about the need for better understanding of the issue by the court and all concerned. He said:
“The difficulties that have arisen in these proceedings, where much time has been taken up at first instance and on appeal in attempting to evaluate Ms A’s qualifications to discharge her instructions, indicate that work should be done to assist parties and the court at the initial stage of choosing an expert by establishing a template into which the basic qualifications of any ‘psychologist’ should be entered.
“The aim of the template will be for readers to see, at a glance, whether an individual is currently registered with the HCPC (and if so in what category), or a chartered psychologist, or not. Further information, displayed shortly and clearly, should identify any formal qualifications, posts held and published work. If, on investigation by the FJC, the three-tier structure controlled by the publishers of assessment tools is seen as a valid indicator, that too should be included.
“Such a template might include some easily understood ‘traffic-light’ indication of expertise. A template of this nature would, I believe, greatly assist courts in divining the basic level of expertise of a potential expert witness. It would remain open to the court to instruct any person who it considers is capable of discharging the expert role in each case, but, particularly where a proposed psychological expert is un-registered, the court should be on notice to the need to look more carefully at the underlying evidence of appropriate expertise.”
GKE v Gunning
On a similar point Ritchie J in GKE v Gunning [2023] EWHC 332 (KB), when addressing the evidence of an expert neuro-psychologist, said: “In my judgment it is always necessary for experts to provide a CV of their qualifications to prove their expertise in the relevant field.”
This goes beyond the requirement of CPR PD35 3.2(1), which requires the expert to include details of their qualifications in their report.
Returning to Re C, McFarlane LJ reiterated the point that it is not for the court to prohibit the instruction of any unregulated psychologist, saying that the current rules and guidance are clear and contain an element of flexibility. He said:
“The question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court, applying, as it must, the principles reiterated by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579), that ‘if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise’.”
Schoultz v Ball
On that specific point, an interesting example was seen in Schoultz v Ball [2022] EWHC 2452 (KB). The issue for the expert witnesses in that case was to help the judge to understand the behaviour of horses whose presence on the highway had led to a serious personal injury road traffic accident. There were three expert witnesses, but the interesting point in this context can broadly be characterised as whether the judge preferred the evidence of an academically qualified expert or one who was qualified by experience.
Clarke HHJ made the following comments on the differing background of the experts and the value of their evidence to the court:
“I…accept [Mr Lane] comes from a different and more practically-focussed background to that of Professor Eddison. That is true, but I do not consider it to undermine the quality of his evidence in this case. The two experts come from two different areas of expertise, but both have provided assistance to the court. I generally prefer Mr Lane’s evidence about the likely behaviour of [the horses] honed from years of living and working around horses and with them, and taking into account what he knew about these particular horses from Ms Ball’s evidence, to Professor Eddison’s more academic and often theoretical approach, but there is much in his theory which has helped me in understanding the behaviour of the horses in this case.”
Conclusions
What we can learn from this is that, ultimately, the court will always be the arbiter of who is an expert witness in the case which is being decided, but for medical and associated professional expert witnesses, the importance of appropriate registration, licencing, and regulation, with sufficiently recent clinical experience, are all important factors in their ability to hold themselves out to potential instructing solicitors as experts in personal injury and clinical negligence cases.
[1] Speaking at the Expert Witness Institute Annual Conference 2019, during the panel session ‘Change is the only constant’. The recording can be accessed via www.ewi.org.uk web shop conference recordings.