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High Court upholds suspension of doctor whose failings as expert witness were “serious and dangerous”

BMJ 2012; 345 doi: http://dx.doi.org/10.1136/bmj.e7298 (Published 29 October 2012) Cite this as: BMJ 2012;345:e7298
  1. Clare Dyer
  1. 1BMJ

A consultant psychiatrist whose conduct as an expert witness in a murder trial was “outstandingly bad” has lost his High Court appeal against a decision by the General Medical Council to suspend him from practice for four months.

Mr Justice Ouseley said that Anantha Kumar’s failings as a witness for the defence in the case of Andrew Day, who stabbed his girlfriend to death, were “many, serious, and dangerous.”

Kumar, who had never given evidence at a homicide trial before, prepared a report after interviewing Day and reading his interview with police. He concluded that Day lacked the intent to commit murder and had a condition called intermittent explosive disorder.

The GMC’s fitness to practise panel found that Kumar, then a consultant with South London and the Maudsley NHS Trust, had not read the prosecution witness statements and had acted recklessly in accepting the instructions and not disclosing his lack of experience as an expert witness in homicide cases.

He had failed to mention that intermittent explosive disorder was not recognised in the International Classification of Diseases and that the diagnosis was controversial. And he omitted to explain that the diagnostic criteria for the disorder in the Diagnostic and Statistical Manual of Mental Disorders had not been met in Day’s case.

Ouseley said that Kumar’s “multiplicity of deficiencies” had been “laid bare” at the trial in January 2009 and that the trial judge had referred him to the GMC.

Only a handful of doctors have been brought before the GMC to answer charges of misconduct in the role of expert witness. The leading case is that of the paediatrician Roy Meadow, who gave evidence at the trial of Sally Clark for the murder of her two baby sons.

He was ordered to be struck off by the GMC for exceeding his expertise but successfully appealed to the High Court, whose findings were upheld by the Court of Appeal.1

Ouseley said that Kumar’s case differed from Meadow’s because the psychiatrist was not lured beyond his purported expertise during the trial but rather “lacked the basic expertise to do the task upon which . . . he had knowingly embarked.”

He said that the panel’s reasoning that Kumar’s fitness to practise was impaired was “based on its view, with which I entirely agree, that it was dealing with an ‘outstandingly bad’ case of misconduct.”

Day was convicted of murder, but the judge said that “the public and the victim’s family could have found a man convicted only of the lesser offence of manslaughter with all that that would entail for sentencing, when he was in truth guilty of murder and should be sentenced as such.

“It is vital to uphold the confidence of the criminal justice system, indeed of any area of the justice system, that medical witnesses will have the requisite expertise and provide balanced and accurate expert reports.”

The case highlights, as did Meadow’s, the somewhat different requirements of expert witnesses in family law and criminal cases. The panel found that Kumar was “both clinically competent and well regarded in the area of family law.” Meadow was also mainly known as a witness in family law cases, which are heard by judges without juries and with a different standard of proof and different rules for admissibility of evidence.

Notes

Cite this as: BMJ 2012;345:e7298

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