Abstract
In AWLP, the GMC states: ‘You should consider undertaking training for the role (of expert witness)’. This does not go far enough. You must be trained:
Clear professional standards, appropriate training, credentialing and quality control for expert witnesses have the potential to address more directly the sorts of problems that arise from the evidence of unqualified, careless, overworked or even unscrupulous experts.
Training as an Expert Witness
In AWLP, the GMC states: ‘You should consider undertaking training for the role (of expert witness)’. This does not go far enough. You must be trained:
It is the expert’s responsibility … to undertake training on the role of the expert and how to perform properly. The courts do not require it, but in the interests of raising standards and of reducing the risk of failed justice, expert witnesses will be advised to engage in training and education about the expert witness system.
Such training can begin during general professional training and it should form part of higher training. It requires appropriate supervision. The doctor who takes up expert witness work in retirement may find it difficult to obtain appropriate supervision and training and can anticipate judicial criticism, except in cases where the events occurred when they were still in practice.
Necessary Competencies
The Royal College of Psychiatrists (2010) identifies as competencies to be acquired in higher training in forensic psychiatry the abilities to:
Prepare reports for … Courts of Law … [and] criminal justice agencies,
Interpret legislation and explain the implications in jargon free language at a level for the specific situation,
Receive and negotiate instructions to prepare reports,
Develop a formulation of a case and write a report to a high standard,
Testify as an expert witness within limits of own expertise.
Consultants who are experienced expert witnesses are well-placed to supervise trainees in the acquisition of these abilities. This is similar to how psychiatric trainees in England and Wales learn to prepare reports for the First-tier Tribunal (Health, Education and Social Care) Mental Health (Rutherford et al. 2015). Higher trainees in all medical specialties should be able to obtain similar training and supervision by secondment or attachment to appropriately experienced trainers.
Training in Report Preparation
Trainees can begin by writing expert opinions based on the facts in specimen reports and preparing ‘ghost reports’. Higher trainees can progress to reports prepared in their own name and countersigned by their supervisor (Rix 2011a) (see Box 3.1).
Box 3.1 Approaches to Training as an Expert Medical Witness: Preparing Medicolegal Reports
Prepare an expert ‘opinion’ based on one of a library of reports covering the range of commonly encountered issues in their speciality and from which the opinion section has been removed. This can be carried out as a group exercise; prior to the group discussion, trainees can exchange and assess each other’s opinions.
Attend a medicolegal consultation with supervisor and draft a report based on the consultation and consideration of all documents and materials available to the supervisor.
Conduct a medicolegal consultation under the direct observation of the supervisor and draft the consultant’s report (‘ghost report’) incorporating any additional information elicited, or signs identified, by the supervisor.
Conduct a medicolegal assessment ‘solo’ and present history and examination findings to the supervisor, who should verify them; then draft the supervisor’s report (‘ghost report’) incorporating any information elicited, or signs identified, by the supervisor.
Conduct a medicolegal assessment ‘solo’ and prepare a report in own name and counter-signed by the supervisor who can, if necessary, arrange to clarify or confirm the trainee’s findings.
Particularly where reports are prepared in accordance with the Rules, there are similar requirements ‘where the expert has based an opinion or inference on a representation of fact or opinion made by another person’ to ‘(i) identify the person … (ii) give the qualifications, relevant experience and any accreditation of that person, and (iii) certify that that person had personal knowledge of the matters stated in that representation’ (CrPR 19.4(e)). This applies where the supervisor relies on a trainee’s examination of the subject. It must also apply where the supervisor relies on the history taken by the trainee. Therefore, the supervisor should include a paragraph along the lines set out in Box 3.2 and the trainee’s curriculum vitae (CV). The supervisor must distinguish their own examination findings from those of the trainee so as to ‘make clear which of the facts stated in the report are within the expert’s own knowledge’ (in accordance with CrPR 19.4(d)) or to comply with the obligatory statement of truth required by CPR.
Box 3.2 Suggested Format for Consultant’s Statement as to Their Reliance on Trainee’s Assistance in Preparing an Expert Report
In preparing this report I have relied on an assessment of the [defendant*] carried out by Dr William Battie, Specialty Registrar in Forensic Psychiatry, who is attached to me for the purposes of his higher training in forensic psychiatry. Dr Battie’s qualifications and relevant experience are set out in Appendix 2. The assessment was/was not carried out under my direct supervision, i.e. I was/was not present when Dr Battie carried out the assessment. I did/did not supplement Dr Battie’s assessment with my own assessment in the form of my own enquiry and examination of the [defendant*]. In the section ‘Psychiatric examination’ I have set out Dr Battie’s findings (and distinguished these from my own mental state findings, these being the only facts within my own knowledge) [if applicable]. I certify that Dr Battie had personal knowledge of the matters upon which I have relied insofar as they are matters ascertained by him through history taking and examination.
* Or ‘complainant’, ‘claimant’, ‘applicant’, ‘plaintiff’, ‘pursuer’ or ‘defender’, etc.
Reports prepared by sufficiently experienced trainees must be countersigned by their supervisor and should include as an appendix the consultant’s own page CV (see Box 3.3) own one page.
Box 3.3 Countersignature Statement by a Consultant Who Has Supervised a Trainee’s Report
I confirm that I am the consultant psychiatrist to whom Dr Henrietta Maudsley* is attached for the higher training, which she is undertaking as the final stage of preparation for her appointment as a consultant psychiatrist. Hence, I am responsible for supervising her training and performance; and I have acted in that capacity in her preparation of this report. However, the opinion expressed in the report is her own, albeit I have supervised her in coming to that opinion. Only in the event that a new question were to be raised within the case that is not addressed in the report, and which Dr Maudsley considers herself not competent to answer, would I expect to be required to give expert evidence to the court in my own stead; albeit of course a different competent expert could be called to deal with such a question. At all times we would both be guided by any relevant court direction. My own CV is to be found as Appendix 2.
* Note that name has been changed from the original.
Related posts:
Chapter 4 – Business Matters
Chapter 5 – The Medicolegal Consultation
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 12 – Reports in Immigration and Asylum Cases
Chapter 17 – Going to Court
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