Regulatory bodies can discipline expert witnesses
BMJ 2006; 333 doi: https://doi.org/10.1136/bmj.333.7575.933-a (Published 02 November 2006) Cite this as: BMJ 2006;333:933All rapid responses
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Peter Gooderham has a point but whilst it may seem extraordinary for
the GMC Panel to be denied both the Appeal Court Judgments there were very
good reasons.
Certainly the family and as I understand it both Counsel, were
anxious to avoid the GMC Panel Proceedings degenerating into yet a fifth
re-trial of the Sally Clark case; which would have done nothing for
Professor Meadow nor Sally trying to pick up the shreds of her life.
Perhaps more to the point neither Appeal Judgment was central to the
issues of the GMC Hearing.
The first Appeal Judgment was based on the erroneous assumption that
the medical evidence was sound. Whereas of the nine experts, prosecution
and defence, who gave evidence at the Trial, the only two who opined both
deaths as unnatural, the pathologist Williams and Meadow, had since been
seriously challenged. Both by numerous other experts and by the GMC. (A
third expert for the Prosecution had admitted mistake and withdrawn three
days before the Trial)
The second Appeal Court allowed the Appeal on the primary grounds of
failing to disclose vital medical evidence which had revealed the most
likely cause of death as natural, confirmed by eleven experts. Having so
determined this Court had no need to go into other detail dismissed obiter
by Lord Justice McKay as "self perpetuating myths".
Against the background of a full Enquiry and Report by the Criminal
Cases Review Commission followed by painstaking Enquiry by the GMC Panel
over 17 days, it is open to question whether or not access to limited
Appeal Court Judgments did not confuse rather than help at least two of
the Judges in the latest High Court ruling.
The family never set out to be vengeful only to establish justice and
accountability and that has been done. If two of the three Judges think
it not to be "serious" by definition then so be it but it was certainly
serious for Sally.
C Frank Lockyer
Competing interests:
The Complainant
Competing interests: No competing interests
Dear Editor,
Further to the clear account (1) of the Court of Appeal decision in
General Medical Council v Meadow (2), it appears that another problem with
evidence has occurred in this sorry, sad affair.
It is stated in the judgment of Lord Justice Thorpe that the General
Medical Council (GMC) panel which heard Meadow's case did not consider the
views of the judges who had examined his expert evidence in the Court of
Appeal in R v Clark (3, 4). It appears that this results from conduct of
the case by the barristers, for reasons which are understandable, but
unsatisfactory.
Thorpe LJ put it thus:
"268. With the advantage of hindsight it seems both extraordinary and
disadvantageous to deny the panel both judgments of the Court Appeal
(Criminal Division). Miss Davis naturally wanted the panel to have the
advantage of the judgment in the first appeal, Mr Seabrook, who led for
the GMC at the panel hearing, wanted the panel to have the judgment of the
court in the second appeal. Apparently the resulting agreement between
leading counsel was that neither judgment should go to the panel.
"269.The predictable outcome, in my judgment, was that the panel
failed to understand the full context in which Professor Meadow gave
evidence..."
It is to be hoped that lessons have been learned about expert
evidence in court. Thorpe LJ has identified a lesson to be learned about
evidence before the GMC when it carries out its role of assessing that
evidence.
Doctors have a concept of putting themselves into a position in which
they can reach the correct decision, and this principle should apply to
their professional regulatory body. When expert evidence has been examined
by judges, it seems appropriate that their judgments should be considered
by the disciplinary panel when hearing cases about that expert evidence.
(1) Clare Dyer
Regulatory bodies can discipline expert witnesses
BMJ 2006; 333: 933-a
(2) General Medical Council v Meadow [2006] EWCA Civ 1390
http://www.bailii.org/ew/cases/EWCA/Civ/2006/1390.html
(3) R v Clark [2000]EWCA Crim 54
http://www.bailii.org/ew/cases/EWCA/Crim/2000/54.rtf
(4) R v Clark [2003] EWCA Crim 1020
http://www.bailii.org/ew/cases/EWCA/Crim/2003/1020.html
Competing interests:
PG has an academic interest in the role and regulation of expert witnesses
Competing interests: No competing interests
expert witness discussion ignores lawyers' role
Over the past 10 years, the mindset of the medical profession has
been battered by public pillory over many issues. Its therefore sad, but
perhaps not surprising, that the entire discussion on expert witness
immunity has revolved around the need to hold to account the errant
opinion of doctors. This rather defensive approach from our profession
overlooks the responsibilities of the legal profession, probably to their
great relief.
There is little dispute that the flawed statistical evidence
presented by Meadow at the Clark trial played a part in a major
miscarriage of justice. But because the evidence was given by an expert of
considerable standing the court was effectively seduced into accepting it.
In a case where there was very senior counsel representing both sides, was
it not part of the job of those barristers to demand some analysis of the
figures given in evidence? It beggars belief, given the training and
propensity for aggressive cross-questioning by all good criminal
barristers, that the simple mistakes in Professor Meadows' statistics were
not exposed at the time. One might also question whether the presiding
judge in the case had a duty to enquire why such a vital piece of evidence
had not been clarified. Had capital punishment still been in existence, an
irreversible tragedy might well have ensued.
It is completely unacceptable that expert witnesses in general are
now being made the scapegoats for lazy lawyering.
Competing interests:
expert witness
Competing interests: No competing interests