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Guidance issued for healthcare professionals acting as an expert professional witness

In May 2019 the Academy of Medical Royal Colleges issued guidance to healthcare professionals acting as expert witnesses, which has been endorsed by healthcare professional organisations and regulatory bodies.

The guidance has been produced following recommendations made in Sir Norman Williams’ Review of Gross Negligence Manslaughter in Healthcare that was conducted for the Department of Health and Social Care and published in June 2018.  Sir Norman’s panel had heard concerns about the quality and consistency of opinion provided by healthcare professionals acting as expert witnesses and made the following recommendation.

“The Academy of Medical Royal Colleges, working with professional regulators, healthcare professional bodies and other relevant parties, should lead work to promote and deliver high standards and training for healthcare professionals providing an expert opinion or appearing as expert witnesses.  These standards should set out what, in the Academy’s opinion, constitutes appropriate clinical experience expected of healthcare professionals operating in such roles.”

Guidance that has now been published by the Academy of Medical Royal Colleges and has been endorsed by nine healthcare professional organisations and importantly six regulatory bodies, namely the General Medical Council, Nursing and Midwifery Council, General Dental Council, General Chiropractic Council, General Pharmaceutical Council and the Health and Care Professionals Council, who have all confirmed that the guidance is consistent with their own standards and guidance.

As the Introduction in the guidance points out “the voluntary professional bodies, the Academy, the Colleges and other professional bodies are not in a position to regulate or enforce compliance with the guidance.  However, any healthcare professional acting as a witness who fails to meet the standards set out in the guidance is not considered to be meeting the expectations or demonstrating the values of their profession”.

The new guidance is relevant to healthcare professionals acting as an expert witness in the Civil and Criminal Courts, the Coroner’s Court, the Family Court and in Tribunals and Fitness to Practice Hearings and other settings.  They are all expected to demonstrate similar standards in terms of being aware of the relevant rules and official guidance relevant to the proceedings, the purpose of their report and to act within their professional competence.

The aspects of the guidance which are original or have been highlighted as specific responsibilities for expert witnesses include:

  • Healthcare professionals giving expert evidence must hold the appropriate licence to practise or registration and be in, or sufficiently recently be in, practice.
  • Healthcare professionals should have the relevant clinical knowledge, training and experience to act as an expert witness and should undertake specific training and continuing professional development for being an expert witness.
  • Healthcare professionals should only give evidence on issues within their scope of practice and competence and areas of expertise.
  • The healthcare professional must have a full understanding of the wider context of care delivery and how it impacts on the case, including the care delivery setting (for example: rural, tertiary care, district general hospital, independent sector, primary care) and the historical context and circumstances, if relevant.
  • The healthcare professional must understand the role and responsibilities of any individuals under review and the circumstances in question.  They should be able to describe and explain the range of spectrum of clinical / professional opinion on the issue in question and indicate, with sufficient reasoning, where their own opinion fits into that spectrum.
  • Healthcare professionals should make a self-declaration as to their scope of practice, professional development, training, special interests, areas of expertise both in general and in relation to the specific case and any conflicts of interest that could impact on their evidence.
  • If they are found to have provided misleading information after such a declaration they could be liable to professional misconduct proceedings, in addition to the possibility of any criminal sanction.

The guidance also reminds healthcare professionals that those who provide expert evidence independently or outside their contract of employment with their employer should have professional indemnity insurance in place, which specifically covers medico-legal work.

Commenting on the guidance, Professor Carrie MacEwen, Chair of the Academy of Medical Royal Colleges said ” Being an expert witness is an important and valuable role.  It is essential that clinicians acting in these roles are properly trained, fully up to date and act with complete integrity.  Having this guidance endorsed by such a range of professional bodies and supported by professional regulators is a significant step.  I believe this guidance will help ensure and maintain the required standards as sought by Sir Norman Williams’ Review.”

The full guidance can be accessed by clicking here.

For further information, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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