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Shaken baby expert witness wins High Court appeal

BMJ 2016; 355 doi: https://doi.org/10.1136/bmj.i5985 (Published 08 November 2016) Cite this as: BMJ 2016;355:i5985

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Re: Shaken baby expert witness wins High Court appeal - who'd be an expert witness?

Mr Justice Mitting’s observation that GMC ‘tribunals needed more understanding of the difficulties of being an expert witness in an adversarial court system where proceedings were controlled by judges and lawyers’[1], was indeed worryingly demonstrated in the case against Dr Squier. Dr Squier had called five expert witnesses, and some of the tribunal’s conclusions about four of them were, the Judge said, “as expressed, untenable.”[2]

I was the fifth defence expert, but I escaped criticism. However, the tribunal made a series of dismissive and critical statements about the other four without giving reasons or examples, suggesting that each was biased and/or unreliable – a series of defamatory remarks against which the they have no right of appeal.

There are two consequences. The first is that the judgment can be used to attack the credibility of any of the four. For example the tribunal’s criticisms of one of the experts, who has a large medicolegal practice in the USA, have been used against her on several recent occasions in American courts, in an attempt to discredit her. She has been unable to refute them, because she has no idea of their basis. The Mitting judgment may have resolved this problem.

But the judgment does not address the second and more insidious consequence. If MPTS tribunals are free to behave in this way, then the risk of being treated so unfairly in a public hearing may well deter experts asked to testify on behalf of accused doctors, from doing so.

Over recent months I have written letters to the Chair of the MPTS, Judge Pearl [who was not the chair of the panel who heard the Squier case], and to the Chair of the GMC, Professor Terence Stephenson. I set out the tribunal’s criticisms of the experts and argued that they had a right to be treated fairly. I asked Professor Stephenson to refer my complaint to the Council of the GMC. I received brief replies from both men to the effect that the only avenue of complaint about a tribunal’s judgment was the right of the defendant doctor to appeal. The American expert’s own letters of complaint about her treatment to both Judge Pearl and Professor Stephenson have been met with similar answers.

I then made a formal complaint to the GMC about the conduct of the tribunal, and about the refusal of Professor Stephenson to refer my complaint to his Council. This was dealt with by the GMC’s routine customer complaints department, who dismissed the complaint without addressing most of the issues I raised. My latest letter to Professor Stephenson has gone unanswered.

It is astonishing that the GMC refuses to investigate a formal complaint about the conduct of a tribunal for which it is responsible. The correspondence leads me to the conclusion that the MPTS, which was ‘established ... to provide a clear separation between the GMC’s investigation function and the adjudication of hearings,’[3] cannot be considered to be independent of the GMC, and that the GMC is unlikely ever to uphold a complaint against one of its tribunals. However, in the light of Mr Justice Mitting’s comments it is to be hoped that the GMC will now agree at the very least to discuss in Council the treatment of expert witnesses during tribunal hearings, and issue guidelines to prevent a recurrence of what happened in this case.

Jennian Geddes BA MBBS MA FRCPath

[1] BMJ 2016;355:i5985
[2] https://www.judiciary.gov.uk/judgments/squier-v-general-medical-council/
[3] MPTS website http://www.mpts-uk.org/about/1603.asp

Competing interests: I acted as expert for the defence in the case of the GMC vs Dr Squier

12 November 2016
Jennian F Geddes
Retired - Former Reader in Clinical Neuropathology, Queen Mary University of London
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London