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Introduction
Medicine and the Law have been closely intertwined since time immemorial; however, in practice, the two disciplines are separate, medico- legal work still being thought of as something which is largely outside mainstream practice.
And certainly, in the eyes of trainees, medico-legal work is something which the Consultants are doing, away from their base, sometimes in secret.
Psychiatry has never been any different, regardless of its being granted special treatment, namely a special jurisdiction and special Courts and Tribunals.
This, however, may change based on an intervention by Dr Hendry, the Medical Director of the Medical Protection Society (MPS), published this year by the BMJ¹ I provide here a summary of his ideas together with a short commentary.
Dr Hendry’s Ideas
Dr Hendry said in his intervention that in tribunal hearings or criminal trials, the expert evidence of a doctor can be pivotal, for example in cases concerning incidents that have occurred in healthcare setting.
Dr Hendry went on to say that this is why there should be a wider pool of doctors with the right experience who are able to serve. Dr Hendry described this as a vital role that doctors can perform on behalf and in support of their profession. He said that any doctor facing a tribunal or court would hope that the assessment of their practice has been carried out by someone respected by their peers and who can present balanced evidence in the context of delivering healthcare in the modern NHS.
Dr Hendry said that many doctors feel uncomfortable in this role, which he said carries a lot of different connotations, however he said that if a doctor is established in their specialty and has built up expert knowledge in a particular area, then it is likely that they have the necessary experience to act as experts.
Above all, Dr Hendry explained doctors need to be able to provide informative and balanced evidence to assist the Court to set a fair benchmark for the accused doctor.
He said we need more doctors to be freed up by their employers as well as encouraged and trained to take on this important role.
Dr Hendry proposed the following action plan:
• The role of the Expert Witness should be looked at by the GMC as part of its drive to set up new credentials for the medical register
• GP and Consultant training should include acquiring the skills to be an Expert Witness
• NHS Employers should make it easier for doctors to be relived from their clinical duties so they can act as Expert Witnesses. This may require contractual reforms to give the Expert Witness greater prominence and greater certainty for those wishing to discharge their role and;
• More doctors should be encouraged to consider putting themselves forward to perform expert witness duties
Discussion
The provision of medical evidence by doctors for medico-legal purposes has been a problem for some time and there is no doubt that it is fast approaching crisis point, however essential this is for the safe delivery of justice.
The poor uptake of the role of Expert Witness by doctors, the “pool“ in De Hendry’s words, whatever the cause, is one explanation and certainly a stark reality facing instructing solicitors and the Courts.
Demand for high-quality low-cost evidence has never been greater, yet the medico-legal system strikes one as being either indifferent or unable to offer any concrete solution. Dr Hendry’s radical ideas, however, do provide a glimmer of hope.
I have for some time being of the view that excellent evidence can be provided by trainees, and indeed I am wholly persuaded that doctors in training could easily take over the role of Expert Witness in certain circumstances and provided they are adequately supervised.
As a Consultant working in the NHS for over 30 years I have, in the past, introduced medico-legal experience into the Job Description of higher psychiatric trainees in a large South London Rotation. This turned out to be very successful, a great many trainees later continuing to work privately as Expert Witnesses, some even electing to join the 1st Tier Tribunal (Mental Health) as Medical Members.
Dr Hendry’s call for more medico-legal training to be available to all doctors, therefore strikes one as hitting entirely the right note.
However, I would go further. In certain circumstances and provided appropriate training is available, in my opinion trainees should be the Expert Witness of choice; the instructions of trainees by lawyers indeed requiring by statute to be the default position, in many cases and across a wide range of jurisdictions.
Conclusions
In short, doctors appearing before the GMC are thankfully still in a tiny minority, however Dr Hendry’s ideas go well beyond the field of medical indemnity and have far reaching implications for all jurisdictions.
If taken to their logical conclusion, they are capable of providing a solution to the impasse and deserve much attention, not only from the medical profession but also policymakers, employers and the like.
References
[1] "More Doctors need to train as Expert Witnesses say MPS” BMJ (2019):364
Disclaimer
The opinions and views expressed in this article are only the views and opinions of the Author. They are not the views and opinions of the Independent Doctors Federation.
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