Medical experts should undergo appropriate medico-legal training before they appear as an expert witness, the Royal College of Surgeons of England advises in new guidance published today.
'The Surgeon as an Expert Witness - A Guide to Good Practice’ sets out the role a surgeon should play when acting as an expert witness in civil1, criminal 2 and coroners’3 cases.
The guidance comes after two independent reviews - Professor Sir Norman Williams’ Gross negligence manslaughter in healthcare rapid policy review4; and the Independent review of gross negligence manslaughter and culpable homicide5, led by Mr Leslie Hamilton – highlighted a need to improve the quality and consistency of expert witnesses in gross negligence manslaughter cases.
The Williams Review noted that in the case of the surgeon Mr David Sellu, his conviction for manslaughter by gross negligence was successfully appealed and quashed by the Court of Appeal, ‘in part due to the manner in which expert witness evidence was used during the trial’.6 The judgment in the Court of Appeal noted that the prosecution asked the expert witnesses the leading question: ‘was this gross negligence?’. This was in fact a question for the jury to consider. The judgment stated: “…the way in which the issue of gross negligence manslaughter was approached (and, in particular, the consequential direction to the jury) was inadequate’. As a result, the conviction is unsafe and is quashed.” 7
The RCS’s guidance advises surgeons that:
Expert witnesses should not give opinions to the jury upon questions that they are not entitled to answer. For example, a surgical expert would be entitled, if asked, to assert whether or not a surgeon’s conduct (related to a criminal case) equated to substandard care. But whether or not that care was ‘exceptionally bad’ would be for the jury to decide. Whilst the Crown Prosecution Service (CPS) might pose such a question, (hoping for an affirmative reply) the expert should not answer it, since his or her role is restricted to the binary question; substandard care or not.
The consultant cardiac surgeon, Mr Leslie Hamilton, led the General Medical Council’s Independent review of gross negligence manslaughter and culpable homicide. He said: “This guidance provides an excellent starting point for anyone considering becoming an expert witness. Criminal and civil courts cannot function without expert witnesses. It is therefore vital that expert witnesses realise the fundamental importance of their role and why they must not step outside their area of expertise.”
The role of surgeons as expert witnesses is particularly important to ensure that claims for allegedly negligent care are resolved fairly, and as quickly as possible. In 2018/19 NHS Resolution received 10,678 new clinical negligence claims. Overall, claims are falling as a proportion of the number of treatment episodes, but costs are rising. The annual cost of harm for clinical negligence compensation for secondary care in England for 2018/19 was approximately £9 billion.8
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