Rapid Responses to:
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Rapid Responses: Rapid Responses published:
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Yes, but
- Bob Bury (1 August 2008)
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The GMC - its just another quango
- ted willis, dn20 8nt (2 August 2008)
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Forensic omnipotence
- Fernando Verdu, Ana Castello. Professor of Legal and Forensic Medicine. University of Valencia (2 August 2008)
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Is it fair to criticise the GMC?
- Mark Struthers (6 August 2008)
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Acting as an expert: epilogue
- M E Jan Wise (8 August 2008)
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and.................?
- Bob Bury (8 August 2008)
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Re: and.................?
- Mark Struthers (9 August 2008)
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Whither expert witnesses?
- Michael J White (15 August 2008)
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Bob Bury, Consultant Radiologist Leeds General Infirmary LS1 3EX
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Having read the previous article (Three doctors and a GMC prosecution; BMJ 2008 337: a907), I think that the President of the GMC might have emphasised the fact that expert witnesses should actually be experts in the relevant field of practice, and should not have publicly revealed their belief in the defendant's guilt before the hearing. Attention to those requirements might have avoided the embarrassing collapse of the GMC's own case against David Southall and his colleagues. Competing interests: None declared |
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ted willis, GP Brigg North lincs, dn20 8nt
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Surely the GMC should issue an apology - not advice on this issue. It has wasted millions after giving way to pressure from a media campaign againsts Paediatricians involved in child protection - appointing expert witnesses who have had conflicts of interest repeatedly, despite this practice being questioned by various eminent doctors including the Chief Medical Officer. Yet noone has apologised or resigned, and there is not a hint of shame in Catto's article or letter in this issue. We may not have a choice about paying for the GMCs absurdly inflated multimillion pound budget - but we do have a choice about whether we pay attention to its advice. They should be treated as what they are - just another government quango - only concerned with keeping the jobs and maybe a gong - and who cares about the medical profession. Competing interests: funder of the GMC |
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Fernando Verdu, Professor of Legal and Forensic Medicine. University of Valencia, Ana Castello. Professor of Legal and Forensic Medicine. University of Valencia
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President Catto point out in the first paragraph of his commentary (1) the main problem with facing daily expert witness: the legal profession do not know the boundaries within which medical experts operate. Forensic medicine and more broadly Forensic Sciences, are becoming instruments of law enforcement officials, used to achieve particular objectives rather than genuine justice. It seems that the solution to any legal problem, it must be based on the testimony of a scientific expert. And the big problem is that science has no answer for many of the issues it raises. Who we are dedicated to forensic medicine, we must always have a solution for every problem. The expert witness has to be omnipotent. In 2007 was published a special issue of Forensic Science Internacional (2) in which states: "Forensic Medicine, one of the oldest medical disciplines, dating back to the 16th century (Constitutio Criminalis Carolina by Emperor Charles Vth) has been more and more criticized in the last decades to be insufficient as scientific discipline, and not to contribute anything to our current medical knowledge". In another publication, also of 2007(3), one can read: "Forensic science is also subjected to political agendas when it becomes a pawn at the hands of law enforcement, attorneys, judges, jurors and looking to extract from it a specified outcome contrary to c the best interests of justice". As we said at the outset, it is necessary that those who are responsible for dispensing justice, have a good training in forensic sciences and know their limitations. They should know what can be asked to science and should not expect the expert witness will solve all problems. Moreover, forensic scientists should lose this privileged pedestal on which we have been located, with the help of the media, especially television. We must all contribute to maintaining the value of science as an irreplaceable element of inestimable importance, for better administration of justice and we must ensure that only is serving the common good of society. But we can not allow that the life, honor and property of a person, and probably a family, pending on the outcome of a scientific test that can be wrong or unrealistic. The truth is that, in forensic science, to say "We can not know" should be the response of the expert witness to many of the issues raised in court. We declare that we have not conflict of interest. 1. Catto G. BMJ 2008;337:a933 2. Madea B, Saukko P. Preface and Introduction. Forensic Science International 165 (2007) 85–86 3. Pyrek K. Forensic Science Under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System. Academic Press. 2007 Competing interests: None declared |
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Mark Struthers, General Practitioner Bedfordshire mark.struthers@which.net
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Bob Bury and Ted Willis should take note that the GMC did not want to take action against Professor Southall and Drs Samuels and Spencer. The GMC did everything it could to avoid taking up the complaints made by Carl and Deborah Henshall in 1997. In fact, the Preliminary Proceedings Committee (PPC) twice threw out those complaints. [1] However, by a majority vote in December 2005, the Court of Appeal (Lord Justice Sedley and Lord Justice Parker) ruled that the GMC had to review its decisions with respect to the Henshalls. The judges found that Professor Southall had refused to allow his comments on the complaints to be disclosed to the complainants. Having accepted this non-disclosure the GMC apparently still considered those comments in making its decision against the Henshalls. In addition, the PPC did not actually read the Griffiths report, but simply relied on the Hey and Chalmers September 2000 paper in the BMJ that was highly critical of it. [2] At the conclusion of the Appeal Court hearing, Lord Justice Sedley said: “The only fair outcome is that the PPC should be reconstituted in order to do the job it has so far failed to do.” [2] Drs Bury and Willis may also be aware that the GMC was coerced by the very same Lord Justice Sedley to take action against a doctor accused by His Lordship of disseminating ‘junk science’ over vaccines. The action against Dr Jayne Donegan, a GP and homeopath, heard in August last year, cost her defence organisation in the region of £100,000 to defend successfully. [3] [1] Southall faces accusations of ethically flawed research. Owen Dyer. BMJ 2008;336:1270 (7 June), doi:10.1136/bmj.39601.642454.4E http://www.bmj.com/cgi/content/full/336/7656/1270-f [2] Appeal court rules that GMC must reconsider complaints against Southall. Clare Dyer. BMJ 2005;331:1426 (17 December), doi:10.1136/bmj.331.7530.1426-b http://www.bmj.com/cgi/content/full/331/7530/1426-b [3] GMC clears GP accused of giving court "junk science" on MMR vaccine. Owen Dyer.BMJ 2007;335:416-417 (1 September), doi:10.1136/bmj.39322.418831.DB http://www.bmj.com/cgi/content/full/335/7617/416-a Competing interests: None declared |
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M E Jan Wise, Chair BMA Medico-legal Committee BMA House, Tavistock Square, London W1G 6HX
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Sir: Catto’s accompaniment (1) to the GMC document 'Acting As An Expert Witness' is to be welcomed. It clarifies for many who have not sought specialist training to who their duty really lies – the Courts. It does not repeat the mistakes of 'Bearing Good Witness' , which have been examined elsewhere (2). Experts should applaud the intellectual rigor of ensuring that ‘ reasonable steps to access all relevant evidence’ are taken. Whilst the Law Society, Association of British Insurers and the Association of Personal Injury Lawyers agreed there was a ‘rebuttable presumption that records would not be sought, subject to the view of the expert witness[author’s italics]’, their consensus has often been seen as an obstacle to obtaining GP records (3). A fear remains that in the imposing setting of the Court, an advocate, or even a judge, may ask for a view which is beyond the experts ‘comfort zone’, resulting in sanction. Providing that it is made clear that the area on which the expert is invited to comment is not one to which expertise extends, or that whilst research does not precisely cover the issue, the experts best reasoning is…, are unlikely to result in sanction (4). ---------------------------------------------------------- 1.Professional conduct: Acting as an expert witness BMJ 2008;337:a933 2.Wannan G & Wise M E J. ‘Bearing Good Witness’: Does it withstand scrutiny? Psychiatric Bulletin 31: 201-202; 2007. 3.Department of Health, Cabinet Office (2006), Making a difference: Safe and Secure data sharing between health and adult social care staff (p10) 4.Hon Lord Justice Wall. A Handbook for Expert Witnesses in Children Act Cases (2 nd Edition) Family Law, 2007 Competing interests: Chair of BMA Medicolegal Committee |
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Bob Bury, Consultant radiologist Leeds General Infirmary LS1 3EX
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I'm not quite sure what point Mark Struthers is making. If the GMC were initially unwilling to go after David Southall et al, you would think they would have been especially careful to observe due process when they were forced to initiate procedings. Competing interests: None declared |
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Mark Struthers, General Practitioner Bedfordshire. mark.struthers@which.net
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… and … of course, the vital need for due process is surely the point, is it not, Bob? And the real victims of this abuse of due process, disgracefully prolonged, have been the complainants, Carl and Deborah Henshall. Spare a thought for them, Bob! Is it fair to criticise the GMC? You bet it is, Bob! Competing interests: None declared |
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Michael J White, General practitioner Stakes Lodge Surgery, Waterlooville PO7 8NS
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Expert witnesses affect all our professional lives either directly or indirectly. Doctors and other healthcare practitioners harbour a fear of appearing in court before a judge or the General Medical Council and facing hostile cross-examination by a merciless barrister. Our fears should more properly be directed towards the expert witnesses who produce the ammunition for the barrister to fire. The reality is that there are many doctors who act as expert witnesses even though they are unaware that they are acting in such a capacity. These include doctors who act as examiners, or take part in tribunals, disciplinary hearings, internal hospital inquiries, inquests, and the preparation of responses to complaints made about both medical and other healthcare colleagues. Their role is essential for both patients and healthcare practitioners. If expert witnesses were a medical specialty with their own Royal College Faculty, what would be the expectations? At a minimum, expert witnesses would be scrutinised with the same rigour that the Royal College of General Practitioners monitors its examiners, both prior to appointment and while they remain on the panel of examiners. They would be expected to have a good working knowledge of their specialty or sub-specialty. The "mindset" of an expert witness is not the same as that of the excellent practitioner. There exist some really superb specialist practitioners who are naturally talented, knowledgeable, and super-competent in their defined area of practice. Sadly many such practitioners lack the empathy to understand why other less specialised or less experienced practitioners fail to meet their high standards. World class racing car or rally drivers do not automatically acquire the "mindset" to become good driving instructors, or become qualified to provide expert witness evidence for an inquest into a fatal road accident. They would be able to demonstrate an insight into how doctors and other professional people make their clinical decisions. They would be able to explain how, why, and when errors of commission or omission arise, the difference between "slips" and "lapses", and the relevance of "involuntary automaticity"(1). They would have a good working knowledge of the psychology of medical error, including the work of leading authorities such as James Reason, and his iconic illustration of the Swiss cheese model of system accidents (2). They would understand the significance of outcome or hindsight bias (3) including, for example, the work of Fischhoff (4), who showed that knowing what did in fact happen makes people much more likely to state that such an outcome was predictable. They would be able to articulate such subtle insights in a language easily understood by an ordinary lay person. Expert witnesses often work independently, and are effectively unsupervised, as only about 2% of cases reach court where there is a significant level of scrutiny. In comparison, counsellors and chartered psychologists work on their own, and are expected to "supervise" each other as a necessary condition of being allowed to continue in professional practice. Surely it should be obligatory for expert witnesses to exercise similar mutual supervision and regular calibration of each other's work? Most legal cases are settled out of court or dropped at an early stage following the scrutiny of expert witnesses. It is at this level that they wield such enormous power, on account of their "legally privileged" status, and the fact that it is considered inappropriate for the "subjects" of the report to challenge anything that the expert witnesses say or write. There is the perception of a potential lack of both accountability, and supervision. They are effectively setting standards for the rest of us, although this usually diffuses into our working lives in a more subtle and insidious manner. This is probably a major contributory factor towards the perceived increase in the practice of defensive medicine, on the grounds that an expert witness somewhere may find fault with a practitioner's proposed course of action. Surely it is a matter of concern that these standards are being prescribed without the regular scrutiny that is now expected in this era of evidence based medicine? There have been previous attempts abroad to delineate expectations for expert witnesses (5). The new GMC guidelines (6) represent a significant "stepping stone" towards improving and defining the quality and conduct expected of expert witnesses. The way forward must eventually be to introduce mandatory accreditation of all expert witnesses, and those who are expert witnesses in all but name. (1) Toft B, Massie-Taylor H, Involuntary Automaticity: a work-system induced risk to safe health care, Management Research 2005;18;211-216 (2) Reason, James, Human error: models and management BMJ; 2000;320:768-770 (3) RA Caplan, K.L. Posner, & F.W. Cheney, Effect of outcome on physician judgments of appropriateness of care JAMA 1991;265:1957-60 (4) Fischhoff B., Hindsight not equal to foresight: the effect of outcome knowledge on judgment under uncertainty Journal of Experimental Psychology: Human Perception and Performance 1975;1;288-99 (5) American Academy of Pediatrics. Policy statement, Guidelines for expert witness testimony in medical malpractice litigation. AAP 2002;109;974-979 (6) General Medical Council. Acting a an expert witness 2008 www.gmc- uk.org/guidance/ethical_guidance/expert_witness_guidance.asp Competing interests: None declared |
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