PI Brief Update

Final Report from The President of the Family Division Working Group on Medical Experts in the Family Courts - Dr Mark Burgin

19/01/21. Dr. Mark Burgin BM BCh (oxon) MRCGP explains how low fees, poor quality instructions from solicitors and criticism by courts is causing a perfect storm.

Professionals working in Personal Injury and Criminal cases should read this report as all court systems are facing the same problems. Since experts lost their immunity they have found their work devalued and under attack. Many experts feel as if they are fall guy for problems outside of their control.

The Working Group considers the evidence from the contributors and offers complex answers. There are however major gaps, their findings are not clearly listed, the need for an authoritative resource such as a textbook is skirted around and how the roles of experts differ is not considered.

The Family Division Working Group does not mention the word disability anywhere within the 123 page report. This is surprising because many problems in families arise because of disabilities (mental and physical) in the parents and or children. Omitting disability suggests a lack of diversity in the selection of the authors.

The Findings of The Working Group

1. Experts complain of low fees, criticism and ineffective legal processes.

2. Most expert reports do not address the issues so oral evidence is required.

3. There is an urgent need for book on the Working in The Family Court as a Medical Expert.

4. Often neither lawyers nor experts know what is needed to assist the court.

5. Bespoke expert reports are not required for literature reviews or medical witness work.

6. There is a shortage of experts to determine the cause of injuries to children.

7. Costs are out of control because of the costs of esoteric specialist expert reports.

8. When Courts try to improve quality they drive experts away.

9. Parents face double jeopardy in the family court and the criminal court for alleged abuse.

10. More committees, training bodies, guidelines, templates, targets, forums, online resources, interest groups, working groups and recommendations are needed.

Working in The Family Court as a Medical Expert

Although lawyers have access to The Family Court Practice 2020 which is a highly considered authoritative tome, experts have no such book. The lack of a book written by and for experts to explain what a good report is, what the family court procedure involves and what the courts expect.

This book would clarify what the court requires the expert to do and how to avoid stepping into areas outside expertise. It would challenge those lawyers who are increasingly basing their cases upon expensive and esoteric specialist experts writing largely irrelevant reports.

The book would provide an authoritative resource that can be quoted in family courts when the court requires guidance on common point. It would also allow experts to ask their instructing parties for clarification when the instructions appear to conflict with the expert’s duty to the court.

It would give practical advice to both new and experienced experts as to how to manage challenges in their work. Having a single comprehensive resource would reduce the need to attend fragmented teaching sessions which do not address the issues that they face.

Expert roles

The family court requires experts to determine several issues inter alia what injuries are present on a child and their likely cause, the likely effects of parental disability, the quality of the parent child relationship and the child’s special needs.

Experts are commonly instructed to consider issues outside of their expertise such as a social worker being asked about the effect of parent with psychosis or a paediatrician being asked whether a parent is a bad person.

The correct expert to determine the quality of the parent child relationship is a social worker who should base their report on sufficient observation of that interaction. Although GPs also have considerable experience in assessing family dynamics they rarely have the time for the length of observation that is required. Reports from the child and family psychiatrists/psychologists rarely add anything material, frequently step outside their expertise and substantially increase the costs of the case.

To assess children’s special needs the expert needs to answer three questions, is the child neurodifferent, do they have any behavioural or mood issues and is there any evidence of restricted intelligence? A learning disability specialist or educational psychologist could each conduct a full assessment but is generally too expensive at £2000 per report. A teacher with special needs training could provide a practical report based upon observation in the classroom at a reasonable price.

Physical needs are generally assessed by a paediatric OT/physio team on the NHS and the court does not require any additional information.

Paediatric specialists are very capable to describe injuries but less good at providing explanations as to the likely causes. They are often instructed to step outside of the expertise and their role by deciding the facts and even the case. This had led to several high profile cases where experts were sanctioned for following their instructions. Better legal training for Paediatric specialists is only part of the solution, the courts must penalise solicitors who offer poor instructions.

Reports from paediatric radiologists, ophthalmologists, neurosurgeons, geneticists, haematologists are better medical witness than expert. Where a range of opinion is required it is better to obtain a further cheap medical witness report from a second (or third) specialist. Lawyers rely too heavily upon this sort of evidence to draw unwarranted conclusions.

The ability to parent is best assessed by a disability analyst who can look at both physical and psychological disabilities. These reports are modest in cost and provide a basis for the court to determine issues that the solicitor has forgotten to mention. Of course, the disability analyst cannot say whether the parent is good or bad, that is a matter for the court, but they can say whether the parent is capable of giving good quality care to the child.

Conclusions

The Family Division Working Group on Medical Experts report identifies a number of problems and makes some interesting suggestions. Experts are unlikely to have their immunity reinstated but court criticism of the lawyers for not picking up the problem before court may make the experience less onerous.

Understanding the limits of the various experts’ expertise may ensure that the right expert is given the right instruction and the right evidence to review. This would dramatically reduce costs and relieve the burden on the more esoteric specialists. Addressing spiralling costs would allow the fees for low level experts to rise.

Increasing use of medical witness reports rather than instructing medical expert could be achieved by a primer in interpretation of medical findings. Even where a specialist expert report is required this primer could reduce the risk that the specialists would need to give oral evidence.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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