Experts in GMC Cases

The GMC will instruct clinical expert witnesses to advise on factual allegations made by complainants about a doctor’s clinical or other conduct. In many cases no findings of fault will be identified against a doctor and the GMC will close the case on paper. There are a few cases each year however where an expert instructed by the GMC will find a doctor to have been at fault in some way and the fitness to practise procedures will then be followed.

The GMC will instruct experts in health cases as well but that topic is discussed elsewhere on this website. This article focuses on allegations of clinical failures, by act or omission, where experts are instructed by the GMC to opine.

It is a requirement that an expert will have expertise in a subject. An expert will need to prove that they have the right experience and knowledge to claim to be an expert. On occasions, the GMC will discipline doctors who claim to have expertise when they do not in fact have knowledge and skill to be one and so an individual who acts as an expert must ensure that they have the right experience and status to be an expert, when acting as an expert witness in any forum, including GMC cases.

A doctor who is facing allegations can choose to instruct their own expert. This can be useful on occasions. On occasion, the GMC will discontinue the pursuit of allegations where a defence expert has opined that a doctor has not failed to adhere to a standard, for example by conducting themselves within a reasonable approach within medicine (i.e. acted within the scope of a reasonable body of opinion in medicine). By way of example, if the GMC’s expert (say a Professor and well-recognised specialist in a field of medicine) opines that a doctor who prescribes a drug is not acting within a reasonable body of knowledge, but an equally comes to a different opinion, the GMC might well discontinue the pursuit of the allegation.

The problem for the defence (for the doctor complained about) is that the cost of instructing an expert can be prohibitive. Further, it is not unknown for the defence to instruct an expert who (after undertaking the relevant reading and a literature search) forms an opinion that is in agreement with the GMC expert. The defence must then choose either to accept that opinion or seek an opinion from another expert who may be more favourable to the doctor. It may also be necessary in some instances to instruct more than one expert, because a complaint straddles more than one area pr specialist medical practice.

Where two experts (one for the GMC and one for the defence) are to give evidence at a Medical Practitioners Tribunal hearing, they will be encouraged to have a meeting to narrow the issues, where they can, and identify areas of agreement and disagreement. This step in turn makes the tribunal’s task easier when looking at determining the issues, as well as making it clear to the parties where the focus of the evidence and cross-examination needs to be. Where two experts meet, the civil courts now encourage, when directed, a joint agenda for the meeting to be put together by the parties’ lawyers (pursuant to CPR Practice Direction 35 para 9.2), to avoid misunderstandings, in so far as possible. The experts should seek to do the following:

‘DISCUSSION BETWEEN EXPERTS

9.1 Unless directed by the court discussions between experts are not mandatory. Parties must consider, with their experts, at an early stage, whether there is likely to be any useful purpose in holding an experts’ discussion and if so when.

9.2 The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.

9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.

9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions.

9.5 If the legal representatives do attend –
(i) they should not normally intervene in the discussion, except to answer questions put to them by the experts or to advise on the law; and
(ii) the experts may if they so wish hold part of their discussions in the absence of the legal representatives.

9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i) – (iv) above. Individual copies of the statements must be signed by the experts at the conclusion of the discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of the statements must be provided to the parties no later than 14 days after signing.

9.7 Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.

9.8 If an expert significantly alters an opinion, the joint statement must include a note or addendum by that expert explaining the change of opinion.’

(Taken from https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35#9.1) as on 21/8/18)

(For guidance on writing a joint agenda, see, by way of example, the case of: David John Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) (23 February 2018). To quote the judge in that case, when drafting an agenda: “Sometimes less is more as far as the agenda is concerned“, per Mrs Justice Yip at para (35).

Where the GMC’s Rules are silent on the approach that should be taken in GMC and MPT proceedings, the civil and criminal Rules may offer a pragmatic guide to the steps that ought to be taken in a given case, as may case law from those jurisdictions.

At an MPT hearing, the experts for each party will give evidence and be questioned. Challenges to the GMC expert must be put to the GMC’s expert. Both the GMC’s and the defence’s experts’ primary duty is to the tribunal rather than their instructing client, in the interests of justice. An expert must therefore give their opinion unencumbered by the views of the party instructing them.

Where factual allegations are proved (usually by way of evidence from documents and other witnesses) the experts will be asked to comment on the various scenarios that might be accepted by the tribunal, to opine on whether the doctor has acted below the standard expected of a doctor working at the grade of the defendant doctor. The GMC asks two questions of experts. Did the defendant doctor’s conduct fall: 1) below, or: 2) seriously below – the standard expected of them?

At an early stage of GMC proceedings, well before any hearing is contemplated, if an expert instructed by the GMC forms the view that the conduct of the doctor fell below but not seriously below the standard expected, the GMC may well close the case with guidance or a warning. This is more likely to occur where the doctor in question has taken appropriate steps to demonstrate quality remediation and good insight. Doctors should therefore do their best to remediate the alleged failings, insofar as they are able to.

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