Abstract
It is from the UK’s National Health Service (NHS) or Ireland’s Health Service Executive or public voluntary hospitals that you are likely to start your expert witness career. Be mindful of your contractual obligations. You cannot get on with your medicolegal work and say nothing or your probity will be in question. However, many employers, in agreeing a job plan, are happy for consultants to do some medicolegal work in ‘work’ time. If you want to do it on your employer’s premises, you need permission. Your employer may want payment, but this will be a deductible business expense.
Experts should be spared piles of documents which [are] of little relevance. The cost of expert involvement [is] unnecessarily inflated by over-burdening them with insignificant papers.
Job Planning
It is from the UK’s National Health Service (NHS) or Ireland’s Health Service Executive or public voluntary hospitals that you are likely to start your expert witness career. Be mindful of your contractual obligations. You cannot get on with your medicolegal work and say nothing or your probity will be in question. However, many employers, in agreeing a job plan, are happy for consultants to do some medicolegal work in ‘work’ time. If you want to do it on your employer’s premises, you need permission. Your employer may want payment, but this will be a deductible business expense.
Setting Up Your Business
In terms of good business practice and tax efficiency, consider setting yourself up as a business. In the UK, Her Majesty’s Revenue & Customs (HMRC) will tax you at your highest rate without the possibility of claiming expenses against your earnings until you register as self-employed. There is some leeway to register retrospectively in the first year. You will need a name – something simple like Dr Andrea Duncan Forensic Practice.
Decide on your accounting year. If it finishes on 30 April, you then have over a year to collect the money from your debtors before tax is due. This is particularly important in the UK where you pay tax on what you invoice, whether or not you have been paid, whereas in Ireland generally income tax arises on receipts, not invoicing.
Document and keep evidence of your expenses to set off against income. Employ an accountant whose fees should be offset with the money you can save! Open a business account, to keep business earnings separate, with a deposit account to save for tax. If you take money from clients directly, best practice is to keep this in a ‘no. 2 account’ until ‘spent’.
If you need to raise money from your bank or just as good discipline, you will need a business plan. If you adopt a mission statement, do not fall foul of GMC or MC rules, which require you not to make exaggerated claims.
But a business is not synonymous with a company. If you want to form a company, consult an accountant. But be careful how you show the company name in reports. If the report is from Dr Andrea Duncan Forensic Psychiatric Reports Company, cross-examination may begin with ‘Whose report is this? Is it the company’s report?’, bearing in mind that a company has a different and separate legal status.
Indemnity or Insurance Cover
Obtain indemnity or insurance cover from an MDO or insurer for your medicolegal work (see Chapter 3, ‘Indemnity and Insurance Cover’). It should extend to claims brought after your death. In McHugh v Gray [2006] EWHC 1968 (QB), there was an issue as to whether the deceased psychiatrist’s inaccurate and falsely optimistic prognosis for the post-traumatic stress disorder (PTSD) of a Hillsborough Stadium disaster spectator had, through his negligence, resulted in an undervaluing of his claim.
Working and Being Contactable
You need somewhere to conduct your assessments (see Chapter 5, ‘The Venue’). It could be your daytime place of work, an independent hospital, your own premises or a set of ‘doctors’ chambers’, with the advantage of sharing an established infrastructure and having a peer group.
Consider how people will contact you and what sort of address you will use. You must separate your expert witness work from any NHS work. Using your home address should be ruled out. Consider a PO (Post Office) Box. This can be literally a place where you collect mail, or it can redirect to a geographic address. However, the underlying ‘real’ address is not secret.
Link your business to an available internet domain name and purchase this in as many iterations as possible. You will use one to promote your business; the others will ‘point’ there. Create a professional email address, such as enquiries@drandreaduncan.co.uk.
Consider getting a computerised telephone number. You can get a local or a non-geographic number which initially can simply be routed to your telephone. Later you can direct it to other numbers (e.g. your assistant) or a computerised switchboard. Another advantage is that its operation can be restricted to working hours. A second number can be used as a ‘fax to email’. Solicitors still seem to expect it. Your telephone can automatically be directed to voicemail if you are not available. A DX (Document Exchange) address is tremendously useful as solicitors use this as an alternative postal system because they are not charged by weight.
Staff
The expert who tries to run their practice alone is a fool! They are expending energy on things at which they are probably not very good and probably wasting important time when fees could be earned or time off enjoyed. Medicolegal work is reasonably lucrative, so employing staff should be possible and desirable. For detail of how to employ people, see Business for Medics (Allen 2014). Consult an accountant; most have payroll departments to assist small businesses. They will deal with tax, national insurance, pensions, contracts and grievance procedures and advise you on other matters, such as employers’ or public liability insurance.
Responding to the Letter of Enquiry
To Accept or Decline
Upon receipt of an enquiry, ask yourself a number of questions (Box 4.1). You should decline instructions from friends so as to avoid a conflict of interest. You must have sufficient time. The party which instructed the expert neurologist in Williams v Jervis [2009] EWHC 1837 (QB) was financially penalised because of his ‘failure to spend adequate time in properly analysing the case’. Be clear about timescales. In the Isle of Man, you are expected to see the subject and report within eight weeks of receiving confirmation that your fees are agreed. Failure to comply with court deadlines risks an adverse costs order. If the proposed timetable would cause a problem or if your other commitments would prevent you giving sufficient time to the case, the onus is on you to identify this problem at the outset (Re X and Y (Delay: Professional Conduct of Expert) [2019] EWFC B9 HH).
Box 4.1 Questions to Be Answered in the Affirmative before Accepting Instructions to Prepare an Expert Medical Report
• Am I in good standing with the College?
• Have I been appraised in the last year (if applicable)?
• Am I up to date with CPD?
• Have I had an introduction to expert witness work?
• Have I received or refreshed training in the role of an expert witness in the last five years?
• Am I available to attend the trial (if the trial date has been fixed)?
• Do I have the time to devote to this case?
• Can I deliver the report by the required deadline?
• Can I declare that I have no actual or potential conflict of interest or personal interest?
• Am I sure that I have no prior knowledge of this case?
• Do I understand exactly what questions I am being asked or what the issues are?
• Do I have relevant knowledge or direct experience of, and expertise in, this area of psychiatry?
• Does the question or issue fall within my own expertise?
• Am I able to give an honest, trustworthy, objective and impartial opinion without it being prejudiced by any views I may have as to the subject’s age, colour, culture, disability, ethnic or national origin, lifestyle, marital or parental status, race, religion or beliefs, gender, gender orientation or social or economic status?
• Can I provide sufficiently detailed information as to my proposed fees to those instructing me in order for them to decide if they are proportionate to the matters in issue and ensure value for money?
• Do I understand the specific framework of law and procedure within which this case is taking place?
• Am I familiar with the general duties of an expert?
If these questions can be answered in the affirmative, you may decide to accept instructions. In any event, the Guidance (para. 22) requires experts to confirm without delay whether they accept their instructions. In the Isle of Man, you are expected to respond within twenty-one days of the date of the letter of enquiry.
But make sure you have clear instructions as to the type of expertise required, the purpose of the report, the nature of the matter to be investigated, the questions to be answered and the history of the matter, including any factual matters that may be in dispute. In AWLP, the GMC says: ‘You must make sure you understand exactly what questions you are being asked to answer. If your instructions are unclear, you should ask those instructing you to explain. If the instructions are still not clear, you should not provide expert advice or opinion.’ There is no equivalent guidance from the MC, but this guidance is of general application.
Acceptance may be conditional on the questions the solicitor wants to ask but which may not yet have been formulated. Be proactive in ensuring that you can answer the questions eventually agreed. You may need to suggest questions or modifications. There may be a subtle difference between the question being asked by a solicitor who has no medical training and what you as a medical expert think it is. Assist by using your medical expertise to identify hitherto unrecognised issues that may be material to the case.
Notwithstanding the clear obligation on an instructing solicitor and counsel to ensure that the expert is appropriate for the case and aware of their duties (Kennedy v Cordia (Services) LLP [2016] UKSC 6), they can only do so if they have sufficient, accurate information as to your qualifications, training and experience so as to match the expertise with the needs of the court. This creates a complementary obligation on you to ensure you are satisfied that you have sufficient expertise and to be honest about it. The expert’s ‘lack of current experience’ in R (Duffy) v HM Deputy Coroner for Worcestershire [2013] EWHC 1654 resulted in the quashing of the coroner’s verdict. In Rhodes v West Surrey and North East Hampshire Health Authority [1998] 6 Lloyd’s Rep Med 24, an obstetrician was found not to have told the truth about his surgical or expert witness experience. The GMC has an interest in these matters: ‘You must always be honest about your experience, qualifications and current role’ (GMP). So do the criminal courts. A forensic computer expert was convicted of perjury after misrepresenting his qualifications (R v O’Shea [2010] EWCA Crim 2879). Only finally agree if you are happy that the questions are within your expertise.
If you consider that you might fall short of providing sufficient expertise, be honest about it; conceal it at your peril. If in doubt, discuss this with a colleague or your MDO. If still in doubt, decline. Do not fear that you will not be instructed again. Knowing that you can be trusted will enhance your reputation. If the case calls for highly specialised expertise and you know someone better qualified, recommend their instruction or you may find them on the other side.
In a criminal case in England and Wales (CrPR 19.3(3)(c)), you must, and in any case or jurisdiction it is advisable to, mention anything which might reasonably be thought capable of undermining the reliability of your opinion or detracting from your credibility or impartiality as an expert. This includes any potential conflict of interest, anything to suggest that you are biased, any criminal convictions and any previous judicial criticism. GMC, MC or medical practitioners tribunal (MPT) proceedings that have resulted in a finding of impairment should be disclosed. Arguably, complaints that have not been upheld do not have to be disclosed because they may not be thought capable of detracting from your credibility. Most medical experts will at some time be in receipt of a complaint, subsequently not upheld, from a dissatisfied litigant.
The enquiry may come from a litigant in person (LIP). Often, they lack the sophistication of professionals and may not understand your duty to the court or tribunal. If they do not like your report, they may be disinclined to pay and likely to complain. The Civil Justice Council (CJC) (2011) makes the point that in England and Wales experts can ask for payment in advance. But, this is only part of the problem. Contracting with an LIP requires understanding of, and compliance with, the complexities of consumer law; if they have a right to cancel, avoid commencing any work during the cancellation period. Also, since 1 April 2019, people who give advice or make representations on behalf of others come under a new Financial Conduct Authority regulatory regime. Whilst this does not apply to ‘pure’ expert evidence, it would seem prudent to avoid giving pre-action advice to LIPs.
Many experts do not accept instructions from LIPs. However, the CJC discourages experts from declining instructions from LIPs, unless there is good reason, as this can limit access to justice for a disadvantaged group. For psychiatrists, who may find their evidence being challenged by the person about whose mental health they are reporting and who has instructed them so to report, with the risk of consequent harm to them, there may be good reason to decline.
Related posts:
Chapter 3 – Training, Development and the Maintenance of Expertise
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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