1. 4 | themedicalindependent | mindo.ie 6 November 2014
newsnewsfeature
Expert evidence in Ireland
under the microscope
A
ConsultationPaperonExpertEvidencepublished
in2009bytheLawReformCommissioncompris-
es part of a larger project on the law of evidence,
which is in its latter stages.
Provisional recommendations in the consultation pa-
per included that the term ‘expert’ be defined; a formal
guidance code for expert witnesses, which could be stat-
utory or non-statutory; and a ban on any fee arrange-
ments with expert witnesses, which are conditional on
the outcome of a case.
Another provisional recommendation stated that joint-
ly-appointed experts should be considered and the Com-
missioninvitedsubmissionsonwhetherthiswouldbepref-
erable to making available to parties a panel of experts to
choosefrom,orhavingasingleexpertimposedbythecourt.
TheCommissionalsoinvitedsubmissionsonwhethertra-
ditionalimmunityforexpertwitnessesshouldberetained.
Mr Ray Byrne, Director of Research at the Law Reform
Commission, informs MI that feedback and submissions
indicatedastrongwelcomefortheideaofsetting-outgen-
eral duties for experts.
“And one of the things, in particular, that has come up
isthatideaofclarifyingandsolidifyingthefactthatanex-
pert has an overriding duty to the Court,” he adds.
It is hoped the Commission’s report on the law of evi-
dence, including its final recommendations on expert ev-
idence, will be published in the first quarter of 2015.
The decision on whether recommendations will be im-
plemented is a matter for Government, although there is
a high implementation rate on Commission recommen-
dations.
Meanwhile,‘ExpertEvidenceinIreland’willbespotlight-
ed at a conference in Dublin on December 4. Organised by
La Touche Training, speakers include Mr Justice John
Quirke,PresidentoftheLawReformCommission;andMs
AideenRyan,Partner,McDowellPurcellSolicitors,whowill
speakonexpertsandthefitnesstopractiseprocess.
Nothing but the truth
The role of an expert medical witness can be a complex one
with many challenges. Catherine Reilly reports
P
eoplecanbevery,veryexpe-
rienced but they are not ex-
perts. They may be — but an
expert is beyond that,” Mr
JWRodneyPeytonOBEoutlinesto
theMedical Independent (MI).
With a background as a gener-
al and trauma surgeon and train-
er in surgical education, Mr Peyton
has been involved in medico-le-
gal reporting and court appearanc-
es as an expert witness for over 30
years. He is a founding member of
the London-based Expert Witness
Institute,whichsupportsandtrains
experts across disciplines.
The role of an expert witness is to
providethecourt,orotherfora,with
specialist knowledge, enabling it to
apply that knowledge to the matter
at hand; the court must arrive at its
own independent opinion.
MrPeyton’swebsitebearspositive
testimonials from numerous par-
ties,including the Legal Aid Board’s
Medical Negligence Unit. Based in
Northern Ireland, he acts as an ex-
pert witness in the UK and Ireland,
andoccasionally,furtherafield.
But what motivates a doctor to
enter the often adversarial world
of legal proceedings, with its atten-
dant stresses and strains, on top of
those in medicine?
Mr Peyton suggests that, for
him, the confluence of trauma
surgery with severe accidents
and violence during the Troubles
brought the legal world into clos-
er proximity. As he explains, his
opinion would be sought on par-
ticular issues within his expertise
and it “grew from there”.
He concedes that the initial expe-
rience of entering a courtroom and
beingquestionedonhisopinionwas
“odd”. However, in today’s environ-
ment,doctorsbeingchallengedfrom
all quarters is increasingly a part of
clinicalpractice,henotes.
“More and more in today’s
world, patients will question you
on things, so they are not sitting
there saying ‘that’s alright doctor,
whatever you say’. But if you stay in
the middle and it is your honestly-
held opinion down the middle and
you have reasons for saying that,
then [the process] is not particu-
larly difficult. And it is not person-
al. I mean, a judge can turn around
and say, ‘look, I favour this opinion
over that opinion’, and if he does,
he does.”
MrPeytonsayshehasnotsensed
negativitytowardshimwithinmed-
icine on account of his role. Rath-
er, he feels that people value “an
honest opinion”. As he describes,
the role of the expert witness is not
to make judgements but to clarify
matters for the court. It is about be-
ingabletolookatbothsidesandar-
riveatareasonedopinion.Itisthen
for the court to review all the evi-
dence and come to its decision.
Mr Peyton adds: “It is not just,
‘I think…’ or ‘in my experience…’
It is more than that; it is to do with
a reasoned opinion on a technical
matter, which the court cannot do
without.”
He also believes that an expert
acting in a prejudiced manner
would invariably end up looking “a
right twit” in the challenging arena
of the courtroom and would attain
a poor reputation among solicitors.
The important distinction delin-
eating experience from expertise is
another point that he emphasises.
“An expert is somebody who can
argue it out. I do this in all sorts of
fora — I teach surgeons around the
world; it is my job. I teach surgeons
to teach surgery. When you are do-
ing that, one of the things you are
trying to do is to get them to be
open to new ideas, new thoughts,
new thinking. Some are fixed in
their ways and they do what they
did 20 years ago, that is not neces-
sarily the right thing to do today.
On the other hand, if you are deal-
ing with a particular case, and that
case is a number of years old, you
havegottobeabletogobacktothat
time and think about what it was
about at that time and what was
reasonable then — and not what
you would do today.”
Mr Peyton says he is often asked
for a “preliminary opinion” from
solicitors who are considering tak-
ing on a case.
“In other words, they ask me to
look at papers, go through it all,
find out what really are the issues
and do they match what the client
thinks are the issues.”
Some complaints involve pa-
tients not having liked what was
said to them or the manner in
which it was said, but this is not
negligence. Similarly, just because
something has occurred does not
necessarily make it an issue of neg-
ligence; it may, for example, have
been a complication for which the
patient was consented.
Ms Susie Shine, solicitor
‘More and more in today’s world,
patients will question you on things, so
they are not sitting there saying ‘that’s
alright doctor, whatever you say’’
“
“Doctors do not get out of their
bed in the morning, saying ‘I will
go out and hurt somebody today’.
But undoubtedly, some of it is not
good practice, it really isn’t,” says
Mr Peyton.
He says that in the past, there
was a lot of paternalism and arro-
gance in medicine. These days, he
still sees some of that, “but very,
very little”.
Ms Susie Shine, solicitor with La
Touche Training, which provides
expert witness training across dis-
ciplinesinIreland,emphasises“the
absolutely key role” experts have in
legal proceedings.
“Without the expert witnesses
beinginvolved,itwouldbeverydif-
ficult for judge or jury to come to a
conclusion on an issue they don’t
understand,” she tells MI.
“Thechallengefordoctors,really,
is the adversarial environment that
they are going into, and that their
opinioncanbequestionedandthey
can be challenged. That is the legal
system. It is unusual and different
from the normal environment that
theymightbeusedto.Wewouldal-
ways say in training that prepara-
tion is absolutely key.”
Ms Shine says it is very impor-
tant that experts understand that
their duty is to the court. “When
they are carrying out their investi-
gation, and then giving their opin-
ion in court, they have to realise
that their duty is to the court.”
Presentlythereisimmunityfrom
suit in Ireland, therefore experts
cannot be sued on foot of their ev-
idence. “This is still the case in this
jurisdiction; it remains to be seen
how this will be dealt with in the
Irish courts, given developments
in other jurisdictions,” notes Ms
Shine.
Indeed, in the UK, it is notable
that a 2011 Supreme Court verdict
ended expert witnesses’ immunity
from suit for breach of duty. Nev-
ertheless, as Ms Shine emphasises,
medical experts in Ireland must be
awarethattheyremainaccountable
to their regulatory body when act-
ing as experts.
Shesaysthefirstthingthatapro-
spective expert witness must do,
when getting instructions, is to
consider whether he or she has any
vested interest in the case.
“We would always say to expert
witnesses that when they initially
get their instruction, they have to
make sure there is no conflict of in-
terest, that this is within their area
of expertise and that this is some-
thing they feel they can do — and
if they can’t, then they don’t take
the instructions. We would be very
Catherine Reilly
catherine@mindo.ie