The medical expert: time for a re-think?
Medical expert opinion continues to play a critical role in a range of criminal, civil, coronial, and regulatory processes. Such opinion can determine, for example, whether or not the Crown Prosecution Service pursues a conviction for gross negligence manslaughter following an incident or error that leads to the death of a patient. It can also, more broadly, dictate the standards to which doctors are held. In the Family Courts, medical opinion is relied upon in relation to decisions where the lives and wellbeing of children are at stake.
Medical expert work is undoubtedly important for patients, families, and society as a whole. It can lead to changes that improve patient safety and ensure that justice is done. However, it can also lead to loss of a doctor’s career or liberty. If an expert gets it wrong, everyone loses. Legal processes are traumatic for doctors, patients, and families.
As highlighted by the report of the Working Group on Experts in the Family Courts, there is currently a lack of appropriately qualified doctors willing to undertake expert work.(1) This leads to delays in the judicial process, with potentially harmful consequences for children and families. Instruction of an expert often relies on word of mouth, and there is no central register. Two key reviews, commissioned in the wake of Hadiza Bawa-Garba’s conviction for gross negligence manslaughter, identify similar concerns and note the absence of a clear governance structure for the role, with no requirement for specific training.
The Williams Review into Gross Negligence Manslaughter in Healthcare called for improvements in the training of medical experts, and support for those wishing to undertake the work.(2) Leslie Hamilton’s 2019 Independent Review of Gross Negligence Manslaughter and Culpable Homicide echoed these recommendations, and set out key elements that should be included within all expert reports.(3)
Notably, both reviews recommended that experts should be in current, relevant, clinical practice.
Ongoing involvement in clinical work helps to ensure that experts are up to date; it also allows for a more realistic assessment of what is “reasonable,” as opposed to “text-book,” or “gold standard” practice. Those working within a system are best placed to understand its challenges and imperfections. Such understanding is crucial; systems issues often play a key role when things go wrong in medicine. They inevitably impact on the care provided by a doctor, and so deserve consideration in all situations where a doctor’s practice is under scrutiny.
In gross negligence manslaughter cases, systems issues could reasonably be said to go to the “grossness” of the error; indeed the offence requires the negligence that caused death to be “so bad in all the circumstances as to be adjudged criminal.”(4) Taking a broad focus, rather than simply scrutinising the actions of an individual in isolation, can improve patient safety and reduce the medicolegal risk faced by doctors. A Medical Protection Society (MPS) report looking at the role of the medical expert says it should be mandatory for expert reports to include any system issues that may have played a role in an adverse patient outcome, and calls on the GMC to set this out in the next iteration of Good Medical Practice, the guidance which stipulates what is expected of all registered doctors.(5)
Given the difficulties experienced by the courts and others in identifying suitably qualified experts, it is important to look at how the pool of experts might be increased. It could be argued that the majority of consultants and GPs, (particularly after an initial period in post) should have the requisite technical knowledge to provide an expert opinion in their field of practice. However, very few come forward to do the work. While barriers are varied and complex, they include financial considerations, lack of training and support, and fear of criticism.(1)
There are also significant practical difficulties inherent in combining the demands of the court with those of a busy clinical practice. Experts describe how hard it can be to persuade employers to allow them to take time out to perform their duties. But employers should recognise the gains associated with supporting employees to participate in expert work. After all, expert work requires regular updating of knowledge, clear communication skills, and an ability to analyse information and come to a conclusion.
Through facilitating expert work, employers will build up a resource of skill and experience that can be tapped into as required; for example, those who undertake expert work will be well placed to conduct SI investigations and Root Cause Analyses, and share learning with colleagues. Allowing doctors to diversify their skill sets and role may also improve job satisfaction and prevent burnout.
It could be argued that the professional obligations placed on doctors require (at least some of) them to act as experts. Doctors owe a duty of care to their patients, and this duty extends more broadly to others (including children). Taking the example of the Family Courts, experts are essential to ensuring that children are safeguarded. In reviewing care and identifying concerns, experts contribute to patient safety.
We need to see a fresh focus on training and removing some of the barriers that prevent doctors from taking on the role.
The MPS report makes clear that NHS employers, NHS England, the GMC and the Academy of Medical Royal Colleges all have a role in play in bringing about positive change in this area. But we as doctors also need to step up. Doctors should put themselves forward to provide expert opinion if they have relevant experience; and ideally, while being in current clinical practice. All doctors who have achieved a Certificate of Completion of Training and who are in the appropriate register should possess the clinical knowledge to act as an expert within their field, and should feel empowered to do so.
Competing interests: Lucy Hanington is employed by MPS. MPS membership provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests, and criminal charges such as gross negligence manslaughter.
(1) The President of the Family Division Working Group on Medical Experts in the Family Courts-Final Report. https://www.judiciary.uk/publications/the-president-of-the-family-division-working-group-on-medical-experts-in-the-family-courts-final-report/
(2) Williams review into gross negligence manslaughter in healthcare. https://www.gov.uk/government/publications/williams-review-into-gross-negligence-manslaughter-in-healthcare
(3) Independent review of gross negligence manslaughter and culpable homicide. https://www.gmc-uk.org/-/media/documents/independent-review-of-gross-negligence-manslaughter-and-culpable-homicide-final-report_pd-78716610.pdf
(4) R v Rudling EWCA Crim 741.
(5) Getting it right when things go wrong: The role of the expert witness. www.medicalprotection.org/expert-witness-report