Expert Witness Doctors and Misconduct as an Expert Witness
Registered Medical Practitioner Expert Witnesses whose approach is reckless or incompetent or otherwise deficient are likely to face GMC investigation and subsequent fitness to practise (FTP) proceedings before the MPTS for misconduct, as well as risk being imprisoned by the Civil Courts, for contempt. Doctors who take on expert witness work will now have to ensure a high level of competence and a greater understanding of the area of law in which their expert opinion is to be given, as well as properly structuring their reports, with accurate and sufficently detailed content.
In the case of Kumar v General Medical Council (GMC)  EWHC 2688 (Admin), the High Court held that the GMC’s FTP panel’s findings that the doctor had been guilty of misconduct because of reckless conduct and various other deficiencies in a number of regards (relating to his role as an expert) would stand, as there was nothing wrong with the GMC (now MPTS) panel’s approach to the case before them or with their written determination.
“Dr Kumar’s misconduct arose in a criminal trial in which the defendant relied on his reports, and they were put before the jury as part of his defence. This was a very deficient report; Dr Kumar’s failings were many, serious and dangerous. A defendant in a murder trial relied on him; the jury might have relied on him; 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 sanction [of four months suspension with a review] is in reality the least which could have been imposed with that end in mind. That point was made by the Panel. But I emphasise it.” per Mr Justice Ouseley (October 2012)
The appeal judge, in referring to Preiss v General Dental Council  1 WLR 1926[at 58], confirmed that misconduct ‘does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence.’
The appeal court confirmed [at 59] following a careful reading of GMC v Meadow  EWCA Civ 1390 that: ‘rarely, absent bad faith or recklessness, will the giving of honest albeit mistaken expert evidence amount to misconduct…[that]…does not mean that misconduct can only arise in cases where recklessness or bad faith are proven. The overriding test remains that in Preiss. …the actual giving of evidence in court, oral or written, or the preparation and content of a report for use in the court, may be of such a nature or degree of incompetence or negligence that it amounts to misconduct without bad faith or recklessness, as the Court of Appeal recognises.
The appeal court also stated [at 72] ‘The panel’s reasoning is based on its view, with which I entirely agree, that it was dealing with an “outstandingly bad” case of misconduct’.
The Kumar case provides a strong warning to doctors who undertake expert witness work that they ought to ensure that they are competent to undertake specialist expert witness work; that they take appropriate steps at each stage of a case to ensure that their conduct is reasonable; and that all salient matters are properly considered and adumbrated, with any controversial view or inadequacy in their materials being flagged up to the court or tribunal. There are not only risks to their own client, of an expert taking the wrong approach; there is also the risk that the court will be misled, leading to an improper adjudication, based on an unreliable opinion of the expert, due of the unrecognised failings of the expert.
See also our analysis of the case of Pool v GMC (2015) and the expertise required by experts who hold themselves out to be and expert in a particular field.
For the basic principles by which an expert witness should operate, see the case of Ikarian Reefer ( 2 Lloyd’s Rep. 68). Also, the case of Anglo Group plc v Winther Brown & Co. Ltd. (2000) EWHC Technology 127, which interprets and explains the principles set out in Ikarian Reefer. See also the current GMC Guidance for Clinical Expert Witnesses, which provides useful guidance to doctors about their professional duties and responsibilities when acting as expert witnesses.
Dishonesty and Recklessness When Compiling Expert Witness Reports
A doctor who holds themselves out as an expert must act ethically and responsibly, in accordance with an expert’s duties to the courts pursuant to the Civil Procedure Rules and the GMC code of conduct Good Medical Practice. An expert who fails to do so is at risk of punishment by the courts, as well as misconduct proceedings before the GMC. See, by way of example, the case of General Medical Council & Ors v Zafar  EWHC 846 (Admin) (April 2020), where the High Court imposed an order of Erasure. And, the preceding civil suit case, whereby an insurer sued the same doctor: Liverpool Victoria Insurance Company Ltd v Zafar (Rev 1)  EWCA Civ 392. In this case, the doctor had been committed to prison for a period of six months, with the judge having directed that the execution of the order for committal be suspended for a period of two years. The doctor had been found to have committed 10 grounds of contempt of court, for conduct relating to expert report writing and subsequent representations in statements. The court of appeal stated that the sentence of imprisonment should not have been suspended. In other words, the findings against the doctor were so serious that only a period of imprisonment would have been commensurate. The Court of Appeal opined that the sentence should have been a minimum of 9 months imprisonment, with 12 months being the more suitable tariff in the round. While making those remarks, the Court of Appeal chose not to displace the original sentence, holding that it would be unfair to do so in light of the fact that the guidance that they were laying down was not previously available to the sentencing judge of first instance.(March 2019)
See also our article on Doctors who Instruct Experts in GMC Proceedings
Doctors Defence Service can provide advice to doctors who undertake expert witness work on aspects of the law and expert witness procedure, to assist the doctor in their work. Doctors Defence Service provides confidential expert witness training and advice on the law and legal principles to doctors who undertake expert witness work. Contact us on 0800 10 88 739 or use our Contact Form.