Dr Kathryn Leask
A response to a doctor’s inquiry gives Dr Kathryn Leask the chance to explain the extensive role of the doctor as an expert witness in court
What’s the job of expert witness?
Q I’m a consultant haematologist who has been approached to be an expert witness in an upcoming court case.
Please can you give me more information as to what this role entails and how it differs from being a professional witness?
A Doctors can be asked to provide a witness statement for the police or the court following an interaction with a patient.
This may, for example, relate to an assessment of a patient who has been the victim of an alleged assault or where a doctor has reviewed a child where a non-accidental injury is suspected.
Where you have been involved in the patient’s care, any witness statement you are asked to provide should be on the basis that you are acting as a professional witness or witness of fact, as opposed to an expert.
However, this may not always be clear cut. It is important to understand the distinction between the role of a professional witness and that of an expert to ensure that you do not become involved in a case where you inadvertently put yourself forward as expert, for example, for the Crown Prosecution Service.
Shortage of experts
A report published in October 2020 by a working group on medical experts in the Family Courts, established by The President of the Family Division, noted that there is a paucity of medical expert witnesses willing to participate in Family Court cases involving children.
The working group found that the main shortage areas for medical expert witnesses were in child psychiatry, paediatrics, radiology, neuroradiology, neurosurgery, haematology, neonatology and genetics.
A number of factors were noted to act as a disincentive to doctors from going into expert work and included court processes, lack of support and training and perceived criticism by lawyers, the judiciary and the press.
A particular problem for doctors was also about the inflexibility in being scheduled as a witness. It was also acknowledged that engaging in expert witness work and providing reports was time- consuming, requiring meticulous scrutiny of medical records and investigation results, including radiological imaging and, potentially, examination of the patient.
This paucity in the availability of experts, particularly for Family Court cases, may result in the need for the police, or other parties, to approach doctors more informally where an expert opinion is needed.
If you are asked to provide information to the police, particularly about a patient you may not have seen or been directly involved in the care of, it is important to make it clear at the outset what your role is.
If the police contact you, asking for an opinion about a patient you are not familiar with, you may find yourself being referred to as an expert and being summoned to give evidence in court on that basis.
There is a clear distinction between the two roles. The role of a professional witness is to provide a factual account of the assessment of the patient and not an opinion as to how the injury occurred, other than to report what you have been told by the patient or the person accompanying them.
It is important to make it clear in your witness statement that any reference to the mechanism of injury relates to what you have been told rather than being based on your opinion or assessment.
If you are not in the positon to give a prognosis or comment on how an injury has impacted on a patient’s life, you should decline to do so.
Limits of competence
It is important to be mindful of the GMC’s guidance on acting as a witness in legal proceedings, which places a particular emphasis on recognising and working within the limits of your competence and making sure that any reports you write are not misleading and do not deliberately leave out relevant information.
An expert witness’ role involves assisting the court on specialist or technical matters which are within the witness’ expertise.
As an expert, you should have had the opportunity to consider all the available evidence before forming an opinion.
An expert will not normally have been involved in the direct care of the patient before the legal proceedings start, although may need to physically assess the patient once they do become involved in the case.
To act as an expert, a doctor would be expected to have sufficient experience as a specialist and would normally have at least ten to 15 years’ experience in that subject.
An expert needs to have knowledge of the court processes and procedures and it would generally be expected that they have had some specialist training in the role of an expert witness as well as having the appropriate indemnity.
To address concerns doctors have about engaging in medical expert work, particularly in relation to the lack of training and support, the medical royal colleges and professional bodies have been encouraged to create resources, including those online, to support expert witness work and raise awareness of the training that is available from other sources, such as the Academy of Experts and the Expert Witness Institute.
Dr Kathryn Leask is a medico-legal adviser at the Medical Defence Union
Police want notes
Dr Kathryn Leask
Police want a consultant psychiatrist to disclose medical records. But does she have to? Dr Kathryn Leask gives her response
Must I hand over patient’s notes?
Q I am a private consultant psychiatrist and have been contacted by the police who have requested a copy of a patient’s medical records to assist them in investigating a crime.
They are hoping there will be information in the medical record that will help the Crown Prosecution Service make a charging decision.
Although the police say he may have committed a serious crime, he is not currently a risk to the public and has capacity.
I understand that the patient, on the advice of his solicitor, has refused to provide his consent to allow the disclosure of his medical records.
The police officer has presented me with a production order, signed by a judge, which orders the disclosure. I assume I must comply with this order?
A It is not unusual for requests to be made by the police for the medical records of patients to help with a criminal investigation.
If the patient is not an immediate threat to the public and they have capacity, their consent should be sought by the police before information is disclosed.
Where consent is refused or where the patient lacks capacity but you cannot justify disclosure in the patient’s or the public interest, the police may, under certain circumstances, obtain a court order. Court orders, however appropriate they seem, need to be viewed with caution.
Before a person has been charged with a criminal offence, medical records are referred to as excluded material. This means, before a charge has been made, the police have no right of access to records even with a court order.
After a patient has been charged, the police can apply to the court for medical records to be disclosed. If the judge agrees, they can make a production order.
So it is important to be aware of the circumstances when the police can rely on a production order, as these are sometimes agreed by a judge under situations when they should not have been. It is important to seek advice early from your medical defence organisation.
In this case, it is important to establish whether the patient has been charged and, if not, the production order will not have been legally granted. This does not mean that the order can be ignored.
While bringing this to the attention of the police will hopefully dissuade them from utilising the order to secure the medical records, it does still need to be discharged. This can be done by the police or, if appropriate, your medical defence provider.
Where you receive a court order, even if this does seem to be lawful and valid, it is a good idea to contact your representative there before relying on the order.