What qualifications will you need to be a credible expert?
Despite litigation being an increasing problem within the NHS (in 2020/21 the NHS spent £2.4 billion on clinical negligence claims alone – an increase of 8.7% on the previous year) iii and the fact that it is recognised that medical experts play an important role in trying to resolve litigation, there is still no formal training path to become an expert witness or even formal qualifications that you need to have.
However, at the end of the day, an expert witness’s overriding duty is to the court and therefore the expert and their evidence must be considered credible to that court.
An effort to define what that ‘credibility’ means and what is required from an expert was stated in recent guidance from the UK Academy of Medical Royal Colleges, published in response to a recommendation from the Williams Review into gross negligence manslaughter in healthcare. This guidance states with reference to expert witnesses that:
- The healthcare professional should have the necessary clinical knowledge, training and experience to act as an expert witness. What this means in terms of role, qualification or length of experience will vary between professions. Individual professional bodies may choose to provide further guidance in respect of their profession. However, the Court will need to be satisfied that the professional has the level of expertise for their evidence to be accepted
- Healthcare professionals who act as expert witnesses should undertake specific training for being an expert witness and the expectations and responsibilities of this role. It should incorporate the principles of this guidance and be appropriate to the individual clinical profession and specialty. Training should be kept up to date with appropriate refresher courses or other activities
- Healthcare professionals must undertake and demonstrate appropriate activity relevant to their clinical expertise and legal aspects of the expert witness role as part of their continuing professional development (CPD) and this should form a part of their annual appraisal.iv
When considering your own credibility as an expert witness I would suggest imagining yourself in a courtroom and explaining to a judge why you feel you are credible to provide an expert medical opinion in this case.
Credibility in my opinion is linked to experience at a senior level within your relevant medical specialty, combined with an understanding and application of the legal principles of clinical negligence and a current knowledge of the systems in which we work. Ongoing involvement in clinical work helps to ensure that experts are up to date and allows for a more realistic assessment of what is ‘reasonable’, as opposed to ‘textbook’ practice.
Those working within a system are best placed to understand its challenges and imperfections. System issues often play a key role when things go wrong in medicine. They inevitably impact on the care provided by a doctor, and so deserve consideration in all situations where a doctor’s practice is under scrutiny. For example, I would not myself feel ‘credible’ to provide an opinion on medical negligence cases during the pandemic had I not been working on the frontline myself during that period.
From the legal perspective, an understanding of clinical negligence processes, the legal principles of clinical negligence and the relevant procedural rules, for example – the civil procedure rules (CPR part 35[i]), which govern the role of the expert – are essential.
You would not endeavour to do a practical procedure such as an insertion of a traumatic chest drain without knowledge of the rationale for the procedure, the anatomy, the logistical process and your equipment – writing an expert report is no different, just with an understanding of the CPR part 35 and case law rather than chest wall anatomy.