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  Insufficiently expert?

Do you know, precisely, where your 'area of expertise' ends?

In Pool -v- General Medical Council, the High Court considered the appropriate sanction for a psychiatric expert witness whom the General Medical Council (GMC) subsequently found did not possess sufficient expertise (read the full decision). The case poses some fundamental questions about how one’s expertise should be delineated.

Background

In brief, Dr Pool, a psychiatrist employed as a consultant within a private secure hospital, was instructed by solicitors for the Health Professions Council (HPC) to act as an expert witness in psychiatry. The proceedings were an HPC Panel hearing relating to a paramedic’s fitness to practise. The paramedic had a diagnosis of personality and post-traumatic stress disorders.

The paramedic objected to the expert evidence on the basis that Pool was not an expert. The HPC Panel determined that Pool did not have sufficient expertise in the field of personality disorders and, as such, excluded his evidence. The paramedic referred Pool to the GMC.

The crucial criticisms made against Pool were that he had insufficient expertise in the area of personality disorders and he had not held a substantive post in the NHS. At the relevant time, Pool was listed on the GMC’s Specialist Register in the category of Psychiatry in Learning Disability, but not in the category of General Adult Psychiatry.

Against this criticism, Pool argued that he had gained sufficient expertise in general adult psychiatry through his work to enable him to be regarded as an expert in the case. The courts have long accepted that expertise can be obtained through both formal education and experience. In effect, Pool was arguing that his claim to expertise in general adult psychiatry was based on experience gained through his professional career as a psychiatrist.

At the GMC

The GMC Panel rejected Pool’s argument that his professional experience of general adult psychiatry was sufficient to qualify him as an expert in that area of psychiatry for the purposes of the case. The Panel stated (para 17):

‘The panel accepts that you have considerable experience in the treatment of women with personality disorders. However this is not in community settings and is not focused on their occupational functioning’.

The Panel also heard some criticism of the report, including that it failed to adequately explain the reasons why Pool stated the paramedic’s fitness to practise was currently impaired, what aspects of her work he considered were impaired, and how long that impairment might last.

That final point was very significant in the view of the GMC Panel because Pool’s opinion – that the paramedic’s fitness to practise might be wholly impaired for at least 2 years – had the potential to devastate her career as a paramedic:

‘The panel considers that to put oneself forward as an expert witness requires more than clinical experience and knowledge. It also requires the ability to produce an adequate report and to give oral evidence in an authoritative and convincing manner. This panel finds that your written report fell short of what is required and that your evidence at the HPC hearing regarding your experience and expert status was confusing and unclear. This panel does not consider that you conducted yourself at the HPC hearing as an expert witness should when giving evidence.’

The HPC Panel rejected Pool’s arguments that his work experiences qualified him as an expert in the field of general adult psychiatry. Accordingly, he had failed to restrict his opinions to matters upon which he was suitably qualified to comment or of which he had direct experience. On this basis, the Panel found Pool’s fitness to practise impaired by reason of misconduct and imposed a 3-month suspension.

On appeal

Pool appealed the GMC Panel decision on the grounds that:

  • the decision that he was not an expert in the field of general adult psychiatry was incorrect, or the Panel failed to provide sufficient reasoning;
  • the finding that he failed to restrict his opinion to matters on which he was suitably qualified or of which he had direct experience was incorrect, or the Panel failed to provide sufficient reasoning; and
  • the finding that his report was inadequate, in that he failed to provide sufficient reasoning for his opinions, was incorrect.

On the first ground (that Pool was not an expert in general adult psychiatry), the Court’s opinion was that the GMC Panel had fully considered Pool’s experience. Furthermore, the Court held that the Panel was correct in the conclusions it reached that Pool was not on the Specialist Register in the category of General Adult Psychiatry and he had not completed any higher professional training.

In short, Pool’s qualification, training and clinical experience did not equip him to classify himself as an expert witness in general adult psychiatry. At paragraph 33 the Court said:

‘The question was whether he could, legitimately, describe himself as an “expert” in the field of assessment of the fitness to practise of an individual carrying out a particular role in the workplace. The Appellant was, simply, not an expert in that area’.

While the GMC Panel’s reasoning could have been fuller, the Court found that the essential question as to why it reached the decision it did was sufficient.

It was also held that the GMC Panel was entitled to find that Pool had failed to give adequate reasons for his professional opinions and failed to display an adequate understanding of the role and responsibilities of an expert witness. This was a conclusion that the GMC Panel was permitted to make and had given adequate reasons for this conclusion.

The sanction

Turning to the sanction, the Court noted that the GMC Panel found the misconduct to be serious in that there is a ‘strong public interest in ensuring that doctors do not act outside their competence’. Accordingly, the Panel was entitled to take the view that some sanction was required. However, the GMC Panel’s decision that conditions were not workable, and therefore that the suspension of Pool’s registration was necessary, was flawed for two reasons.

First, the GMC Panel found that Pool lacked insight, but that his misconduct could be remediated by the gaining of insight. The GMC Panel said that a 3-month suspension would allow Pool sufficient time to develop that insight. The Court held that these statements were contradictory. On the one hand, the GMC Panel determined that it could not come up with suitable conditions to attach to Pool’s practice certificate because of his lack of insight, but then thought that he could remedy this deficiency during a 3-month suspension. The GMC Panel did not explain why a condition prohibiting Pool from acting as an expert witness at fitness to practise hearings for 3 months would not be appropriate.

Second, the suspension for 3 months was disproportionate given that the sole concern was that Pool had, on a single occasion, held himself out as an expert in relation to an assessment of a healthcare professional’s fitness to practise. There was no criticism of any other aspect of Pool’s work as an expert witness in the field in which he did have expertise or of his clinical practice. The sanction imposed barred him from working as a clinician, and therefore was disproportionate to the misconduct the GMC Panel had found proven.

The Court replaced the Panel’s decision with an order that Pool must not accept expert instructions to act as an expert witness in fitness to practise proceedings for 3 months.

Conclusion

It is tempting to see in the High Court’s confirmation of the GMC Panel’s finding that Pool failed to fully reason his opinions and to display an adequate understanding of the role and responsibilities of an expert witness. But there are some important points raised by this case.

The first is a narrow issue concerned with GMC Panel hearings: GMC Panels must remember that proportionality applies just as much at the sanction stage as it does earlier in the proceedings. Any decision on the sanction must be based on reasoning that shows the clear correlation between the sanction imposed and the misconduct proven.

The broader issue is that, despite an assumption by many to the contrary, the boundary of an expert’s expertise is generally quite fuzzy. Just how are experts supposed to delineate what falls inside, and crucially outside, their areas of expertise? This is not a new question, but with the ability now for expert witnesses to be sued by disgruntled litigants, and professional bodies such as the GMC taking ever more powers to regulate practitioners, it has never been more important.

When Professor Sir Roy Meadow turned his hand to explaining multiplication of probabilities one can imagine he likely felt sufficiently expert to explain to the jury how the 1:73,000,000 number arose. After all, he had doubtless covered basic statistics very early in his own scientific education.

To the lay reader, the idea that a psychiatrist who works daily in psychiatric practice with adults is not, through experience, an expert in general adult psychiatry may seem a bit counter intuitive. But the technical meanings given to everyday words by specialist communities commonly confound the rest of us: who’d have thought a tiny thing like an electron could be described as being ‘massive’!

Of course, the expertise required in a case is often determined by the instructions given. In Pool, if the solicitors for the HPC did not specify, perhaps because they did not know, that what was needed was an expert who was listed on the GMC’s Specialist Register in the category of General Adult Psychiatry, then how much blame lies at Pool’s door if that criterion is found to be paramount? Or should Pool himself have known that inclusion on such a list would be necessary? Given that the courts will admit expertise gained from either education or experience, we will continue to face the problem of how individual experts are reliably to define the extent of their expertise. The core expertise gained through education will normally be obvious, but the boundaries of what expertise has been gained through experience will often be blurred. What is the solution? Some kind of over-arching expert witness accreditation system that predetermines which expert can take on what case? Let’s hope not!

The Civil Procedure Rules (CPR) already have the solution. Various CPR pre-action protocols have processes designed to ensure that basic challenges over an expert’s claim to expertise can be dealt with very early in proceedings. They work by exchanges of lists of possible experts, together with their CVs. If that procedure had been followed in the HPC proceedings, then Pool’s deficit in the view of the paramedic could have been dealt with before a report was even written.

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September 2015

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