CALL IN THE EXPERTS
The Administrative Court recently found in favour of Sir Roy Meadow, who appealed at his striking off by the General Medical Council (GMC) as a result of expert evidence he had given in Sally Clark's trial, writes Sue Lindsey.
The judge, Mr Justice Collins, found the GMC's decision was not justified by the evidence.
But he also considered the question of whether expert immunity from claims should extend to disciplinary proceedings. The question was a novel one, raised by the judge himself.
He may have raised it because it seems that, since the GMC's decision, there have been difficulties in the family courts finding paediatricians to give expert evidence.
One explanation is that paediatricians are sensitive souls. Feelings run high in the child-protection work they become involved with, and some have been subjected to press campaigns and unacceptable behaviour directed at themselves and their families. Add to that the prospect of their being reported to the GMC, and it is perhaps not surprising that expert paediatricians have run for cover.
The public policy underlying the immunity of all witnesses is to encourage them to speak freely by removing the worry that they might be sued for something they say. The judge held that expert immunity should extend to disciplinary proceedings where complaints are made about an expert's evidence. However, he said it should still be open to a judge who considers that an expert's conduct has fallen far below what is reasonably expected to then report them to their professional body.
What is the scope of the expert immunity that Mr Justice Collins has extended? It comes from several cases that deal with different points, and the result is arguably a bit of a muddle. There are some fine lines drawn in the judgments.
In Darker v Chief Constable of the West Midlands, the example was given of a policeman who falsely stated in evidence that a defendant made a confession, which statement would attract immunity, and a policeman who, at an earlier stage, fabricated a note containing a confession, for which there would not be immunity.
Although about dishonest acts, the principle similarly applies to negligent acts.
The present position, on the basis of these cases, seems to be that whether or not an expert has immunity can depend on the stage at which he makes a mess of things.
Something that is not properly part of the judicial process, for example an early report, does not attract immunity. But an expert who goes to an expert meeting and changes his mind is immune from a negligence claim. There is protection in respect of answers given in court. Some say that sits uncomfortably with there being no immunity for the questioner. But an expert can be susceptible to an order to pay costs if he has caused them to be incurred in disregard of his duties to the court.
The appeal of Mr Justice Collins' decision is to be heard after Easter. It is to be hoped it will sort out not only whether it is right that there be immunity in respect of complaints made to disciplinary bodies, but also explain the present inconsistencies in the expert immunity regime.