GMC v MEADOW: NO EXPERT WITNESS IMMUNITY

FROM FITNESS TO PRACTICE PROCEEDINGS

In General Medical Council v Meadow[1], the Court of Appeal upheld the decision of Collins J, by a majority, that Professor Sir Roy Meadow, a paediatrician, had not been guilty of serious professional misconduct when giving expert evidence in the criminal trial of Sally Clark.

Whilst all three appeal court judges thought that Professor Meadow’s misinterpretation of statistics relating to sudden infant death syndrome (what became known as “Meadows’s law”) amounted to professional misconduct, only the Master of the Rolls, dissenting, thought that this amounted to serious professional misconduct. Thus the penalty of erasure from the Medical Register had been too severe.

Of more general importance was the decision relating to expert witness immunity from disciplinary, regulatory or fitness to practice proceedings, referred to collectively as “FTP proceedings”.

Collins J had held that an expert witness’s common law immunity from civil proceedings for professional negligence should extend to FTP proceedings, when based upon a complaint by a party or anyone else affected by an expert’s evidence. It would thus be a matter for the trial judge alone, to consider whether an expert’s performance had fallen so far below the standard expected of them, that disciplinary action was warranted.

The idea that a judge might report an expert witness to their regulatory body for poor professional performance was not a novel concept. In Pearce v Ove Arup Partnership Ltd[2], Jacob J held that an expert architect’s evidence had been so biased and irrational that it amounted to breach of the duties owed to the court under Part 35 CPR. Further, he indicated that the expert would be reported to the RIBA, subject to a 21 day period to show cause.

However, the Court of Appeal was reluctant to introduce the judicial filtering mechanism proposed by Collins J, preferring to leave this to Parliament.  The Master of the Rolls observed (para 50):

“…To introduce the solution proposed by the judge would again cut across or impliedly limit the powers of a Fitness to Practice Panel by extending the immunity from civil suit to FTP proceedings, which would be wrong in principle. Here again it seems to me to be essentially a matter for Parliament or the relevant authorities to decide what if any changes are made…”.

Some commentators have expressed surprise that expert witness immunity was left intact by the Court of Appeal, particularly in the light of the overriding duty to assist the court, enshrined in CPR rule 35.3(2). See for example Sir Louis Blom Cooper QC’s recent analysis in the New Law Journal[3].

In the meantime the UK’s Chief Medical Officer, Sir Liam Donaldson, has moved quickly to try and deal with potential shortages of medical experts in key areas, particularly those dealing with alleged child abuse in the family courts.

His report, “Bearing Good Witness: Proposals for Reforming the Delivery of Medical Expert Evidence in Family Law Cases”[4] was published for consultation at the beginning of November, and the consultation period closes at the end of February 2007.

The key proposal is that in future the provision of expert medical evidence in public law Children Act proceedings should be delivered by the NHS as a public service, consistent with its duty to safeguard the welfare of children.

This service will be provided through the establishment of teams of paediatricians, child psychiatrists and other relevant specialists in local NHS Trusts. They will work together to improve the quality of the service through mentoring, supervision and peer review.

It is anticipated that giving expert evidence in court will eventually become part of basic and postgraduate medical education. A new “National Knowledge Service” will provide an evidence-based scientific foundation for expert opinion in matters of child health.

It is also anticipated that the Academy of Medical Royal Colleges will collaborate with other professional bodies, such as the British Psychological Society and the Council for the Registration of Forensic Practitioners (“CRFP”), with a view to the local NHS teams eventually becoming accredited under ISO 9000.

The question of who will accredit such experts remains a moot point. Training and accreditation of experts featured in Lord Justice Auld’s review of the criminal courts, published in 2001.

This has resurfaced more recently in the Legal Services Commission’s Consultation Paper on“The Use of Experts”[5], and the report of the Royal College of Pathologists and the Royal College of Paediatrics & Child Health on “Sudden Unexpected Death in Infancy”[6]. The former favoured the CRFP model, the latter favoured accreditation by the medical Royal Colleges, or by speciality associations.  

Peter Ellis

November 2006