Not heard that one yet? Well there is a significant risk that you might once the Courts wise up to the academy of Medical Royal Colleges’ May 2019 pamphlet entitled ’Acting as an Expert Witness, guidance for Healthcare Professionals’.
Now admittedly I am not expecting change to suddenly later the way in which Courts function. I have, in 2020, been in two Courts where the CPR Part 35 provisions were completely ignored (Defence Expert allowed to advocate for the Defence case, Expert giving evidence outside his field in an area he had no qualifications or experience – and admitted it) and they have been around for many years.
This new provision stipulates important provisions for Experts.
- Must only give expert testimony where it is within their professional competence
- They should make it clear if a matter is outside their competence
- They should undertake specific training for being an expert witness
- Expert Witness activity must be part of their CPD and annual appraisal
If found to have provided misleading information the Expert can be liable to disciplinary proceedings.
So, everyone will recognise the first two as they are clearly in Part 35. What has changed is that Part 35 was largely administered (or ignored) by the Courts, this is now a matter of Professional Regulation which, for Doctors, is the GMC.
The third and fourth provisions are somewhat different.
Many experts out there consider their role in the NHS or Private medical spheres is quite sufficient for them to be called as an Expert. The Colleges clearly do not see it like that and now require specific training (up to and including the CUEW qualification). So, when Solicitors produce a case this has to be the first question to ask because if the answer is ‘no’, this needs to come out as early as possible so that consideration as to whether or not another expert who is appropriately trained should be instructed. If the expert is untrained this is relatively easy to rectify (if they cooperate) and a ‘no’ could probably be changed to a ‘yes’ in a few weeks, well before the case gets to a conclusion.
The fourth point will catch out the vast majority of experts. It is more important because it related to the LAST annual appraisal at least, and possibly those that went before. Clearly the problem with this one is that it cannot be rectified.
Experts who do not follow these provisions, and they have had plenty of time to do so, risk disciplinary proceedings, as one in a case I was involved in earlier this year is about to find out. The risk to the case of using such an Expert could be very significant for both Claimant and Defendant lawyers.
Mr R Scott-Watson
BSc(Hons) MB BS LLB (Hons)(Open)Cert. Av. Med. Cert.MR(2)CUEW DDAM FRCS(Ed)
Orthopaedic Surgeon, Expert Witness & Disability Analyst APIL Expert
Medico-Legal Reporting since 1990. Over 23,000 reports.
- 2020 – ACQ5- the United Kingdom Best Practice operator of the Year (Healthcare Expert Witness)
- 2020 Orthopaedic Expert Witness law position England. The Lawyer Network
- Leaders in Law Global award 2020.
- 2020 Corporate Intl Magazine Global Award: Orthopaedic Therapy Expert Witness of the Year in England – 2020
- M&A Global Awards – Best Expert Witness Service Provider 2020 – RSW Medico Legal Ltd
- Global 100 2019: Individual – Orthopaedic Therapy Expert Witness of the Year – England
- Global 100 2019: Richard Scott-Watson – RSW Medicolegal Ltd – Best Expert Witness in Orthopaedic Trauma of the Year – UK
- Global 100 2019: Orthopaedic Therapy Expert Witness of the Year – 2019 – Mr R Scott-Watson, RSW Medico-Legal Ltd – England
- Global 100 2019: Best Expert Witness Services Provider – 2019 – RSW Medico-Legal Ltd – UK
- Lawyer International Global Award. Orthopaedic Surgeon and Disability Analyst Expert of the Year 2019
- Corporate Live Wire Expert Witness Services Provider of the Year 2019
- Lawyer International Legal 100 – 2019 Best Practice of the Year for Medico-Legal Cases – UK
- Lawyer International Legal 100 – 2019 Orthopaedic Expert Witness of the Year – England
- Lawyer International Legal 100 Orthopaedic Surgeon and Disability Analyst of the year UK 2019
- Corporate America Today Best Expert Witness in Orthopaedic Trauma of the Year UK 2019
- M&A Global Awards 2019 – Individual Orthopaedic Therapy Expert Witness of the Year England
- SME News. Best Expert Witness Service Provider 2019
- 2019 Corporate Intl Magazine Global Award ‘Orthopaedic Therapy Expert Witness of the Year in England’