Brush up on guidance for expert witnesses
Sally Old
To supplement the new edition of Good Medical Practice, the GMC has also updated its professional standards guidance in seven areas. In this series, the MDU’s Sally Old looks at what has changed. She starts with witness statements and expert evidence.
The GMC’s new guidance on Providing witness statements or expert evidence as part of legal proceedings is a more wide-ranging version of Acting as a witness in legal proceedings (2013) and took effect on 30 January 2024.
The GMC’s intention is to explain the different ways that doctors can assist the justice system and to set out the relevant good practice principles.
At 18 pages, the new guidance is more detailed than its predecessor and while some content may be familiar to doctors who undertake medico-legal work, it’s a good idea to know what the regulator expects of professional and expert witnesses.
Introduction (paras 3-7)
The GMC sets the scene by summarising that a doctor’s role in legal proceedings is to provide ‘factual, honest accounts of events and objective and impartial advice if giving an expert opinion on matters within their competence and experience’. It notes that the ‘quality and reliability’ of their evidence can make a significant difference to the outcome.
Defining legal proceedings (paras 8-9)
While the GMC’s previous guidance focused on courts and tribunals, the new guidance has a broader scope. Besides civil claims, criminal cases and inquests/fatal accident inquiries, its definition of legal proceedings also includes:
Court applications for a legal ruling – for example, on patient capacity;
Tribunals including fitness-to-practise hearings;
Statutory public inquiries with evidence-gathering powers;
Regulatory and investigatory bodies with evidence-gathering powers.
While this guidance does not specifically apply to non-statutory inquiries, such as an adverse incident investigation in your private hospital, the GMC still expects you to be guided by its general principles and repeats this point in paras 16-17. We also recommend seeking specific advice from your medical defence body in this situation.
Ten key principles (para 12)
The GMC has expanded on the general principles in its previous guidance. These apply to all doctors whatever their role in legal proceedings and are summarised below:
1 Act with ‘integrity, honesty and objectivity’.
2 Take steps to understand the process, time-scales and your legal obligations including the handling of confidential information. The guidance includes a section with further resources from other organisations and relevant legislation, court rules and directions for all UK countries.
3Respond promptly to requests, take practical steps to meet agreed deadlines and attend meetings and hearing when required.
4Ensure evidence is ‘accurate and not misleading’ by taking reasonable steps to check and including all relevant information.
5Use language and terminology that can be understood by someone without medical training, provided it is possible to do so without misleading, and explain terminology.
6Stick to matters within the limits of your professional competence or where you have relevant knowledge and be clear about what is fact and what is opinion.
7Explain and decline to comment on areas outside your expertise or direct knowledge. If required to answer, do so to the best of your ability and be clear about the limits of your knowledge.
8Do not allow your relationships or opinions to affect your objectivity.
9Manage conflicts of interest in line with the relevant GMC guidance and legal rules.
10Reflect on learning points that arise from your participation in legal process.
Different roles
As before, the GMC guidance differentiates between being a witness of fact/professional witness and being an expert witness. In addition to the general principles above, it sets out the specific responsibilities for each when giving evidence.
Witness of fact/professional witness (paras 13-17)
This role is to help establish the facts in legal proceedings by providing a statement or oral evidence about your clinical findings and observations and decisions based on contemporaneous notes and clinical records as much as possible.
If asked to comment on the actions of others, ‘this should be limited to matters which you have direct knowledge of’.
Expert witness (paras 18-34)
Expert witnesses use their specialist expertise and experience to give an impartial medical opinion on issues like the standard of care someone received or the patient’s condition and prognosis.
It’s an attractive option for independent practitioners looking for another intellectual challenge or to boost their finances alongside their clinical work or after retirement.
At the same time, expert witnesses can find themselves under scrutiny.
In a previous MDU analysis of cases in which expert witness members sought our support, problems included complaints about the expert’s demeanour and attitude, the nature of their examination, that they had changed their view or that their report had contained inaccuracies.
The GMC covers the responsibilities of expert witnesses in some depth in the latest guidance, starting by emphasising the need for training to develop the necessary practical knowledge and competencies for the role, such as familiarity with relevant guidance, how to write an expert report that is fit for purpose and giving effective oral evidence.
It expects you to consider in each case whether you have the knowledge training and experience to assist the court.
We advise you to familiarise yourself with the new GMC guidance and seek advice from your defence body if you have any specific concerns.
