‘Experts’ at Risk of Misconduct Findings
Doctors who hold themselves out to be experts in a particular field must ensure that they have the required expertise to be able to give opinions that are admissible in General Medical Council (GMC) hearings, the High Court held. The court’s judgment has wider ramifications, too, for doctors who act as experts in other proceedings beyond GMC fitness to practise proceedings, in court or elsewhere.
Appeals in GMC Cases
In Pool v GMC [2014] EWHC 3791 (Admin) a doctor appealed a GMC/MPTS panel’s findings that he was not not suitably equipped to hold himself out as an expert in adult psychiatry. The GMC panel had also found that the doctor had inadequately assessed the complainant of the GMC proceedings, whom he was providing an opinion on. This finding was also appealed. While the doctor was unsuccessful in challenging those two determinations, he was successful in proving that his suspension for three months was disproportionate. A period of conditions was instead imposed by the High Court. (November 2014)
The impact of this appeal decision is that doctors must be sufficiently expert enough in their field to be able to hold themselves out as experts. Otherwise they risk being prosecuted for misconduct by the GMC.
Cases of General Applicability
The Essentials of Obtaining Expert Evidence to Challenge an Expert Witness
In Otway v R. [2011] EWCA Crim 3 it was held that a challenge to an expert’s opinion was unsustainable where the expert’s expertise was not challenged but the opinion given by the expert (the comparative walking gait of a defendant) was challenged, as no expert evidence had been called by the defence to challenge the Crown’s expert evidence. At para 21:
21. In the course of argument the court invited Mr FitzGibbon to identify the area of expertise which he was challenging. He made it clear that he did not challenge Mr Blake’s qualification and experience in clinical podiatry. No challenge was being made to Mr Blake’s ability, by means of the expertise and experience he had acquired in his 12 years of practice as a podiatrist, to identify particular features in an individual’s walking gait. Mr FitzGibbon explained that he was challenging Mr Blake’s ability to comparethe walking gait of two individuals. In our view, this is an untenable proposition. There was evidence before Maddison J of the witness’s familiarity both with the technique of assessment of a walking gait and of the use of recorded material for the purpose of analysis. The appellant did not seek to adduce, either before the trial judges or this court, the evidence of any expert podiatrist in an attempt to undermine Mr Blake’s assertion that he was qualified to make a comparison between one walking gait and another. Mr FitzGibbon simply characterised Mr Blake’s evidence as “self-validation”. We do not understand the basis for this argument. Mr Blake explained in evidence the clinical practice of podiatry, his qualifications, the need to make the relevant assessment in the course of that practice, and his own expertise in it. None of this is challenged. That is not self-validation; it is unchallenged validation. If the appellant wished to make the assertion either that there was no such science or expertise, or that Mr Blake was unqualified to express an opinion based upon it, it seems to us that the onus was upon the appellant to do more than merely to make the bare assertion. Mr Blake’s evidence of the existence of the science and his own proficiency in it was, on the face it, acceptable and the appellant has done nothing, even now, to undermine it. Since, as Mr FitzGibbon told us, he was not challenging Mr Blake’s proficiency in identifying the features of a walking gait, it must follow that he was unable effectively to challenge his ability to assess the walking gait of two individuals side by side. There is, it seems to us, no difference between the expertise required to carry out the analysis of each gait (which is not challenged by the appellant) and the expertise required to carry out a comparison between the two (which is challenged by the appellant).
There was (at para 20 of the judgment) the appeal court held, when commenting on at the prosecution’s expertise: “sufficient [evidence] to establish the existence of (1) the science or expertise, (2) the witness’ proficiency in it, and (3) the foundation for the witness’s opinion.”
(Court of Appeal: January 2011)
See our other articles for additional case law analysis:
Expert Witness Doctors Can Be Subject to GMC Misconduct Proceedings
For advice on the law of holding oneself out as an expert, contact Doctors Defence Service on 0800 10 88 739 or use our Contact Form.
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