Instructing a Defence Expert in GMC Cases

Defence Experts in GMC CasesUsing a Defence Expert in GMC Cases

The GMC case investigation officers will on occasions instruct an independent expert to provide an opinion on the allegations that a doctor faces (such as factual allegations, or allegations of ill-health, or professional deficiencies). If the opinion is favourable to the doctor then the case is likely to be closed without further action, without the case reaching the Rule 7 stage. Where there are some minor criticisms, the GMC may ask the doctor complained about, to put in place some changes to their practice. Whereas, if the criticisms are more serious, the doctor will need to evidence steps of remediation and demonstrate insight.

It may take some time for an expert instructed by the GMC to provide their opinion to the GMC investigations officer. A doctor who is facing allegations should consider instructing a defence expert early on, to ensure that there is sufficient time to obtain a defence report and to make follow up enquiries, where appropriate, when the GMC expert’s opinion is eventually disclosed.

Once the GMC expert’s report becomes available it will be only a short period of time before the case is referred to the case examiners for consideration at the Rule 7 stage. The GMC may grant a short extension to allow for a defence expert to comment, but they will not grant a long period of time, generally speaking.

A number of doctors misunderstand the requirements of the legal process and hold back on instructing a defence expert, believing that their own testimony will be sufficient to counter the GMC expert’s opinion. This is rarely the case, as the doctor complained about may not be objective enough or knowledgeable enough to comment on their own practice. Any commentary they submit is likely to be viewed as self-serving. The case examiners may then decide to give little weight to a doctor’s personal testimony, even where it is supported by academic literature, in the absence of a defence expert report.

An independent expert is in a better position to give an objective and unbiased view, which in turn is more likely to be given greater weight by the case examiners at the GMC. The weight given to an independent opinion will usually be greater  than the weight that is given to the doctor facing criticism. For that reason, a defence expert is in a stronger position to challenge the opinion of the expert called by the GMC.

It should be noted, however, that the case examiners are not permitted, save in certain circumstances, to determine which expert’s opinion should be preferred, as that responsibility is (usually) reserved to the fitness to practise tribunal panels at the MPTS. Where there are significant differences of opinion, and where those differences might make all the difference to an assessment of whether a doctor’s fitness to practise is impaired, the case examiners will be likely to refer the allegations to a fitness to practise hearing.

When instructing a defence expert in GMC cases, the expert should be sent the GMC papers, any relevant defence papers, as well as the academic literature that supports the approach the doctor has taken.

Where a doctor, who is facing allegations, has acted within a respected (and reasonable) body of opinion, and the standard that they have reached in the care or intervention they have given to a patient reaches the appropriate minimum standard then the doctor is unlikely to be criticised. Where the experts disagree they are encouraged to meet face to face, in order to narrow the issues in contention. On occasions, a GMC expert will make further concessions that enables the case examiners to close the case on paper.

As mentioned above, where there is a significant disagreement between the experts, it is unlikely that the GMC case examiners will be able to make a determination in favour of the doctor, on the papers alone, at the Rule 7 stage. In such circumstances, the case examiners will be likely to refer the doctor’s case to a fitness to practise hearing.

At a fitness to practise hearing, the expert for the GMC will usually give evidence in person or by video. They will set out the information and data that they have taken into account, whether in favour or against the doctor facing allegations, and then set out their opinion as to where the doctor did well and where they acted sub-optimally.

An expert must comply with Part 35 of the Civil Procedure Rules, when providing a expert opinion. See also further guidance about experts, written by the court service, explaining to lay people the procedure in the civil courts: Guidance for the instruction of experts in civil claims. Note that there are a few differences between civil cases and regulatory cases (such as GMC / MPTS cases) and this needs to be borne in mind when an expert is instructed to opine for a doctor facing GMC/MPTS proceedings.

The GMC’s expert will explain to the tribunal how and when the doctor fell below the standards expected of a doctor working at their grade, and also whether the doctor fell seriously below the standards of a doctor working at their grade. A defence expert would then look at the same information, and any additional information the doctor provides to explain their conduct (acts or omissions), and go on to explain why the doctor has not fallen below the standards expected of them (if that is their opinion).

The defence expert will need to deal with each of the allegations that arise as a result of the GMC expert’s opinion. Either in the first expert opinion, or a later time, there will need to be an explanation as to why the defence expert disagrees with the GMC’s expert. The experts will need to look at each individual area of concern, and look, too, at the overall standard of the doctor of concern. A one to one meeting will usually be necessary (pre-hearing) between the experts, to narrow issues of agreement and disagreement.

The doctor would also give evidence at a hearing, having provided their own witness (defence) statement. Other witnesses might be called to give evidence, for each side. The tribunal will take into account all of the evidence it hears but is likely to put significant weight on one or the other expert, as part of the adjudication process.

Without a defence expert, in many cases where there is a dispute over the opinion of the GMC’s expert, the doctor complained of would be likely to lose their argument on an issue in dispute. There will be only a few occasions where it will not be necessary to instruct a defence expert.

It is often best to have a defence expert sit through the factual evidence at a GMC/MPTS fitness to practise (FTP) hearing, so that they can take it all into account. It is also very useful for a defence expert to hear the evidence of the expert called by the GMC. A defence expert who sits into observe the hearing can also provide guidance to Counsel on the questions that need to be asked of the factual witnesses and of the GMC’s expert.

A defence expert report may also prove to be of value in Interim Orders Tribunal (IOT) hearings. During such hearings, the panel does not make factual findings but instead looks at the weight of the evidence and the seriousness of the charges. Where the GMC has obtained an expert report, the use of a defence expert report to counter the weight to be attached to the GMC’s expert report can be of great assistance.

The costs of using a defence expert in GMC cases are difficult to predict, as each case turns on its own facts, and have its own complexities. Each expert will have their own hourly rate, and each case will have a unique number of pages of evidence that need to be considered. On average, a defence expert will provide a first opinion for a fee of between £800 and £2,500 (sometimes as much as £5000). Some experts also charge VAT on their fees. Further work may be required as and when the GMC case progresses. Expert witness’ hourly rates are usually between £150 and £500, depending on the expert’s experience and speciality. An expert will usually charge in the region of £800 to £1800 per day to attend a tribunal hearing. These charges are for the expert witness and do not include defence legal costs.

Read our other articles on clinical expert witnesses and their duties: Doctors Acting As Experts – it covers matters relating to independence and conflicts, and refers to GMC Guidance to expert witnesses.

It should be noted that in some cases an expert who is not a clinician might be called to give evidence. For example, an accountant might be called where a doctor is facing allegations of fraud, or an expert in quality assurance might be called to give evidence about poor standards in their practice.

Note that the courts have indicated that an expert opinion will only generally be needed where it would ‘reasonably assist’ a decision-maker with resolution of a dispute (see para 48-58 of Bux v The General Medical Council [2021] EWHC 762 (Admin)). The test for admissibility of any expert’s evidence will include (a) that the evidence is relevant, and (b) that the evidence/opinion is something outside of the usual expertise of the panel tasked with determining the issues in the case. An expert should comply with the MPTS Protocol for Experts. Experts should also take into account the ethical guidance from the GMC for experts: Giving Evidence as an Expert Witness

In National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68, 81-82 the court (Cresswell J) summarised the duties of an expert:

“The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246, 256, per Lord Wilberforce). 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379, 386, per Garland J and In re J[1990] FCR 193, per Cazalet J). An expert witness in the High Court should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (In re J). 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. 5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (In re J). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd v Weldon The Times, 9 November 1990, per Staughton LJ). 6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court. 7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).”

See also the Court of Appeal’s decision cited the above passage with approval in the case of General Medical Council v Meadow [2006] EWCA Civ 1390 (October 2006). Note however, that there have been developments in the law of immunity of expert witnesses since that time. See our article on this subject: Expert Witnesses and Misconduct Proceedings

Experts called by the GMC must also bear in mind the GMC standards that are expected of them: Standards for GMC Experts.

Conflicts of interest should be identified early on, to avoid the instruction of an expert whose opinion will ultimately be ruled inadmissible, or be given no weight. An expert has a duty to do this. See the above case of Bux for more information on this duty.

Case Law on the Duties of Experts

Liverpool Victoria Insurance Company Ltd v Zafar (Rev 1) [2019] EWCA Civ 392 – sets out the criteria for jailing experts for contempt of court, where an expert has failed to follow their duties (March 2019)

See also our article: Experts in GMC Cases

If you would like advice on whether to instruct a defence expert, or if you would like assistance with instructing a defence expert in your GMC case, contact Doctors Defence Service, without obligation and in strict confidence. Call 0800 10 88 739