This is a post from Malvika Jaganmohan, one of our new contributors, who tweets as @MalvikaJaganmo1.

A collective of medical and legal professionals descended on the Royal Courts of Justice on 4^thJuly 2019 to discuss the current shortage of medical experts in the family courts. This symposium formed part of the work carried out by the President’s Expert Witness Working Group, led by Mr Justice Williams. The group presented its initial findings from surveys that had been sent to both medical and legal professionals; some of these came as absolutely no surprise at all, but others made the attendees pause for thought.  

An initial disclaimer: I haven’t put in the specific details of the raw data that was presented to the attendees (e.g. how many participants, the exact percentage responses to the survey questions etc). The working group hasn’t yet concluded its work and wants to present its findings in a considered way to the public. As such, they didn’t feel able to hand over their presentation slides to The Transparency Project to share with the world.

In light of their position in respect of the raw data, I have chosen to limit this post to general observations. The quantitative detail will, no doubt, be published in the group’s eventual report. I haven’t attributed comments to any particular individuals as the symposium was an opportunity for professionals to speak freely about their experiences and to suggest solutions.

There were a few central themes and questions:

1. Is there a shortage of experts at all or are we making a mountain out of a molehill?
2. If there is a shortage, what are the barriers to medical professionals becoming expert witnesses? (NB: “medical professionals” is the term I’m going to use in this post, but within this, I include allied health professionals such as psychologists). 
3. What are the solutions?

I’ll address each of these in turn. 

Is there a shortage?

Those working in the family justice system have all heard anecdotal evidence of “Dr X can’t report for 6-9 months and that’ll push back the court timetable but we have no other options!”. But is there actually a problem across the board? Mr Justice Williams asked for a show of hands if any members of the audience had experienced a shortage of experts. The response was unanimously “yes!” (I include myself in this). 

The legal survey presented by Sharon Segal of 1 Garden Court reported a particular shortage of experts in psychology and psychiatry, paediatrics and radiology. There is also an apparent shortage of experts that are typically required in fact-finding hearings (i.e. consultant paediatricians, neuro-radiologists and ophthalmologists.) These are hearings where a judge considers the available evidence and makes “findings of fact” about whether something did or did not happen. These hearings are particularly crucial in cases of suspected non-accidental injury to a child. Experts who are often needed are consultant paediatricians, neuro-radiologists and ophthalmologists. 

What are the barriers to medical professionals becoming expert witnesses?

This was the really interesting stuff. The first thing to note is that the data suggests there is something of a disconnect between why medical professionals are not taking up work as expert witnesses, and why lawyers think they aren’t taking up this work. Some barriers are obvious to both sets of professionals: poor remuneration, delays in payment, unrealistic timescales, and so on. However, there are barriers which haven’t really been realised or acknowledged by lawyers. 

For instance, a recurring theme was pension tax implications of doing expert witness work, an issue which came as news to many lawyers in the room. I can’t pretend to understand the nightmarish complexity of the NHS pension tax scheme, but the gist of it is this: medical professionals who are members of the NHS pension scheme may trigger huge tax charges for taking on additional work if they exceed their annual allowance threshold. They risk being landed with a marginal tax rate of over 100% for doing expert witness work, racking up a tax liability which is greater than what they’re actually paid. They could effectively be paying to work. 

Another barrier raised by the medical professionals was a lack of peer support and a lack of support from their college/their trust. We forget that many expert witnesses have day jobs as actual treating medics. One participant said that, in her experience, doing expert work is seen as ‘private practice’ work and she would have to take annual leave if she were ordered to come to court on a working day. In response to this, a legal professional observed that surely giving evidence in family proceedings forms part of the business of treating children and needs to be recognised as such by NHS trusts. The feedback was that NHS trusts simply don’t value expert witness work because there’s nothing in it for them. They don’t give medical professionals the time, support or facilities to do this work. From a family justice perspective at least, consideration of whether (and how) a better understanding might be achieved between the NHS and the Family Court on supporting professionals to do this work, seems needed. This would be in the wider interests of children and families.

Other responses were less surprising. A recurring complaint was a lack of adequate remuneration for expert witness work and payments on invoice which are often delayed. The unwieldy court process was also the target of much criticism. I have no doubt that many instructing solicitors would acknowledge sheepishly that they’re responsible for sending documents in a dozen emails to experts rather than in one bundle. 

One point of feedback that came as a surprise to me – but really shouldn’t have – was that some experts feel put out that they don’t know how a case concludes. Of course, family court work can be incredibly distressing. We repeatedly acknowledge the effects of vicarious trauma on lawyers. Similarly, experts may spend hours meeting parents and children, observing contact and sifting through reams of medical reports. Often, once they have produced their report or given their evidence, that’s the last they ever hear of the family. Feedback from the medical survey was that experts don’t always get feedback on their work and they don’t find out what’s happened. Having completely thrown themselves into the lives of these families, it would be nice to know how things turned out. Comments amongst the attendees included: “I have no idea if my reports are any good” because no one tells them if they’re doing a good job, and “we’re not experts in being expert witnesses”. The Family Justice Council and the Royal College of Paediatrics and Child Health (RCPCH) have provided guidance on paediatricians as expert witnesses in family courts. Appendix 1 to this document notes that the instructing party must inform the expert in writing of the outcome, the use made of their evidence, the order and a transcript of the decision. Whether this actually happens in practice is another matter altogether. 

One barrier raised, of particular interest to The Transparency Project was fear of criticism. This may be in the form of judicial criticism, media criticism or both. It seems that mention of Professor David Southall or Professor Roy Meadow (the expert witness in the tragic Sally Clark case) still sends a shudder down the spines of many expert witnesses, with some holding a real fear that public criticism can cause significant reputational damage. Criticism of the work of experts (like that of other family justice professionals undertaking a critical task on behalf of society with major implications for children and families) is inevitably a feature of published family court judgments from time to time. See, for example the Transparency Project here discussing C (interim judgment on expert evidence) [2018] EWFC, featuring an expert who responded frankly and constructively to judicial criticism of an aspect of her work. There is also this thoughtful response of Rebecca Carr-Hopkins and Tracy Rydin-Orwin (ICI trainers) and Andrea Landini (Director, Family Relations Institute) on the particular learning points and the complex task of learning lessons when things go wrong (which of course has application for all professionals working in a family justice system which is slowly becoming more open – not just experts).

Some respondents to the medical survey were particularly anxious about media coverage. In the age of social media when it can feel like reputations can be destroyed before you can say “retweet”, this fear is enhanced. There is a constant tension between the risk of harm caused by the closed nature of most family court proceedings and the recognition that media coverage sometimes distorts what happens in the family courts with risks of other harms including to individuals. One aspect of what the Transparency Project aims to do is demystify, clarify, call-out and correct misleading media coverage, as well as to encourage and facilitate better reporting, and to encourage and assist the wider family justice system to do the same. Irresponsible journalism remains an ever-present issue in reporting of the family justice system. The view of some professionals in the survey and at the symposium is that the media does not always recognise the nuances and complexities of reaching a conclusion, and that experts have many complex cases and don’t always come to a right answer. One member of the medical community remarked that younger medical professionals are “spooked” by some treatment of witnesses in the media and that this can impact on their willingness to take on expert witness work. 

There’s also a fear of rough treatment by cross-examining lawyers. Examples of rough treatment given by participants included feeling that their abilities are being attacked rather than their conclusions, and the persistent fear of accusations of negligence. One lawyer responded – with murmurs of sympathy from other legal professionals – that experts need to be aware that their clients need to see that their lawyer has challenged the evidence to the best of their abilities. In short: don’t take it personally. 

What are the solutions?

Money appeared perhaps the most tricky issue, with of course no easy solution. One attendee remarked that they’ve been hearing the same issues being raised over and over again for the past 10 years: the Legal Aid Agency is not going to change the levels of remuneration or the mechanism for payment, and the government bureaucracy isn’t going to reduce in any way. Without the buy-in of the Ministry of Justice, nothing is going to change. A proposal for including expert witness work within NHS contracts was met with disbelieving laughs. One solution that was floated was to share expert witness fees with NHS trusts so that they have a stake in the revenue stream. 

Training was a recurring issue raised by medical professionals. The general view seemed to be that there is little support offered to professionals on how to be expert witnesses. Suggestions included: 

• Identifying best practice;
• Allowing experts to sit in on family court cases;
• Sharing examples of high quality reports;
• Receiving feedback from judges;
• Creating awards to recognise experts’ contribution to medico-legal matters;
• Having lawyers conduct training where experts are cross-examined and provided with feedback;
• Peer review;
• Mentoring schemes. 

Conclusion

I can’t possibly cover all the possible barriers and solutions in one blog post – I’ll leave that to the Working Group – but the above should give a flavour of what the central issues are. It’s definitely not all doom and gloom. As Williams J noted, whilst at first glance it may seem disheartening to see so many issues being raised, in another sense, it’s encouraging to know that there are a wide range of barriers that may invite a wide range of innovative solutions. 

It’s clear that there needs to be some sort of dialogue between the Family Court, the Ministry of Justice and NHS trusts. We need expert evidence, both to keep children safe, and to prevent families from being separated unjustly. It would be helpful if trusts were to recognise a stake in the realisation that delayed expert evidence can have life-damaging consequences for children. I wrote recently for the Transparency Project here on West Sussex County Council v B [2019], where delays in obtaining expert evidence led to a baby being removed for many months when the family could have been reunited much earlier. This isn’t just a family court issue. It’s a long-term health and safeguarding issue. 

Suggested further reading:

• ‘Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations’ – guidance from the Family Justice Council and The Royal College of Paediatrics and Child Health, August 2018
• ‘Psychologists as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations’ – guidance from the Family Justice Council and the British Psychological Society, January 2016
• ‘The use of expert witnesses in family court cases involving children: A guidance note for parents & professionals’, The Transparency Project, January 2019

Image– Thomas Hawk on Flickr (creative commons – thanks)