Court Reserves Judgement in GMC Appeal against Expert Immunity Ruling
Day 1
The General Medical Council, supported by the Government’s Chief Law Officer, opened its appeal against a judicial ruling that expert witnesses have immunity from disciplinary action by professional regulators.
In the High Court in February this year, Professor Sir Roy Meadow successfully appealed before Mr Justice Collins against an earlier decision by the GMC to strike him off the medical register after a Fitness To Practice Panel found him guilty of serious professional misconduct. Now the Collins judgement itself is being tested in the Appeal Court.
Opening three days of legal argument, the Attorney General, Lord Goldsmith, said there was a broader public interest principle at stake than the GMC’s disciplinary action against Sir Roy Meadow.
He said that, while he recognised there had been difficulties in the Courts, particularly in Family Division, with a shortage of suitable experts willing to offer their services, there was a critical public policy issue to be considered. This was, he added, an issue of “balancing the risk of important expert evidence not being available with the risk that the public would not have confidence in the justice system.”
Judges, said the Attorney, could not enforce the Collins ruling as it would turn them into“unpaid gatekeepers, saying when an expert witness had or had not fallen sufficiently far below proper standards of expert evidence, a job that was properly the province of the expert’s professional regulator”.
He argued that it was more a matter of improving communication between Courts and the GMC and medical experts. Lord Goldsmith told the Appeal Court that he was pushing forward the long-awaited Chief Medical Officer guidelines on expert evidence. This document, he said, was likely to include measures to improve quality of instructions and training.
But, Lord Justice Thorpe, sitting with Lord Justice Auld and Master of the Rolls Sir Antony Clarke, criticised the CMO’s proposed guidance for failing to “tackle the disincentives” preventing experts from offering their services to the Courts in greater numbers.
Lord Justice Auld added that the expert witness was in the difficult position of owing a duty to the Court and a parallel duty to his or her professional body. There was, he said, an overlap in responsibility which needed to be addressed.
The Attorney went on to argue that, specifically in the case of the GMC, the Council’s regulatory powers were enshrined in statute. This meant, he said, that Mr Justice Collins had exceeded his authority in ruling that disciplinary action by an expert’s professional body lay within the bounds of immunity. The Collins ruling, he argued, was a common law solution that could not override statutory provision.
As Lord Goldsmith left Court at the end of his submission, Roger Henderson QC, Counsel for the GMC, echoed the Attorney’s concerns over a shortage of suitable specialists but said that immunity was not the answer.
The potential for an expert witness to face the prospect of disciplinary action if he gave flawed evidence would, said Mr Henderson, “provide a salutory effect and, rather than being a deterrent, would be conducive to the proper expression of honestly held professional opinion.” The Panel’s greater knowledge of medical matters than the Courts, proper findings of fact and appropriate ruling of serious professional misconduct against Professor Meadow gave, he argued, robust backing to this message.
Mr Henderson added that there may be a case for treating medical experts as different from non-medical because of the possibility that, in addition to opinion evidence, medical experts may be called upon to give factual clinical evidence, in for, example, child care proceedings.
Nicola Davies QC, Counsel for Professor Meadow, reminded the Court that her arguments were confined solely to his case and that her instructions did not extend to considering the impact of any ruling on non-medical experts. The three Appeal Judges acknowledged her submission but said the effects of their consideration of this Appeal would inevitably be applied in the wider context.
Responding to the GMC’s case, Miss Davies said that the fundamental issue before the Appeal Court was not one of extension of immunity but exceptions to be granted by the Court in what was, historically, an absolute immunity. The normal exceptions, she said, were perjury, contempt of Court and perverting or attempting to pervert the course of justice, circumstances where there was a criminal aspect to the behaviour of an expert witness. As a result, said Miss Davies, disciplinary action by an expert’s professional body was automatically covered by the absolute nature of immunity unless the Court in an individual case ruled otherwise.
Day 2
A GMC Fitness To Practice Panel has greater expertise than the Courts in judging medical experts, according to the Council’s submission.
Roger Henderson QC said that this alone meant that Mr Justice Collins could not substitute his own judgement in the Meadow case unless it could be shown that the three medical and three lay members of the Panel had strayed beyond “the ambit of reasonable judgement.” In his submission, they had not.
But Nicola Davies QC told the three Appeal judges that the Panel had made mistakes in its findings of fact and that, as a result, its ruling was, in the words of Mr Justice Collins, “clearly wrong.” It had, she said, incorrectly found that some of the statistics were part of his medical evidence when he had only cited the sources and accused him also of ignoring the effect of an elevated risk of a second unexpected infant death at the time of the Sally Clarke trials when the evidence presented at the later tribunal on this point was unclear. She said that the GMC Panel had wrongly attributed what was described as the “Prosecutor’s Fallacy” to Professor Meadow, arguing that he was not responsible for misusing the statistics to wrongly imply guilt.
Counsel for the GMC said that, in his submission, the actions of Professor Meadow amounted to gross professional negligence and that, as a result, was consistent with a Panel finding of serious professional misconduct.
Intervening, Lord Justice Auld said that the question facing the Court was whether Professor Sir Roy Meadow had simply referred to statistical information that he had obtained, as a doctor, from other sources or had adopted that information as part of his medical evidence.
It was, said Roger Henderson QC, the GMC’s position that Professor Meadow had not, at the original trials, made it clear to the Court that he was not a statistician. In so doing, he argued, he had not defined his limits of expertise and the figures had therefore become part of his evidence as a doctor. This was not made clear he continued, until the GMC Panel hearing last year.
Day 3
Professor Sir Roy Meadow did no more or less than any other expert witness when he cited statistical information in his evidence at the Sally Clark trial, according to submissions made by Nicola Davies QC on the final day of the Appeal Hearing. It was, she argued, not for the expert but the Court to decide the use to which evidence should be put and the significance to be attached to it.
Events, she said, began with a call from colleagues of Professor Meadow to write a paper based on his experience as a distinguished paediatrician, following retirement from clinical practice in 1998. This led, the following year, to the publication, referred to, at the GMC Panel Hearing, as “the 1999 Paper.” It was, she continued, a paper which was peer reviewed before being accepted for publication on 03 September 1998.
In it, Miss Davies said, Professor Meadow quoted the probability of death due to Sudden Infant Death Syndrome (or SIDS) occurring in a family as around 1-in-1000. According to her submission, this figure later appeared in a statement, dated 05 June 1998, that Professor Meadow made to Cheshire Police in the case of Sally Clark.
In an answer to a question from Lord Justice Thorpe, she told the three Appeal Judges that an allegation that the death of Mrs Clark’s two children was due to SIDS was “very much an issue for the Defence” and, that this had only ceased to be so after the evidence of another paediatrician, Professor Berry, was given at the Crown Court trial in October 1999.
Coincidentally, continued Miss Davies, while the case of Sally Clark was on its way for Trial, Sir Roy Meadow was approached by Professor Fleming, in August 1999, to write the foreword for a major study of Sudden Unexpected Infant Death, referred to later, at the GMC tribunal, as “the CESDI study.” This was, recalling the evidence to the GMC panel, because, she told the Appeal Court, Professor Fleming regarded Sir Roy Meadow as a leading authority who would enhance the reputation of the study.
Professor Meadow was later to explain to the GMC, said Miss Davies, that 1-in-1000 from the 1999 Paper was a ‘ballpark’ figure that had come from the audience at a lecture that he had given and been maintained through peer review. It was, she said, a figure that Professor Meadow regarded as supported by the 1-in-1303 general figure quoted in the CESDI study.
Although acknowledging at the original Crown Court trial that the CESDI study was “the best available”, Miss Davies said that Professor Meadow had maintained his underlying opinion that the risk of a second SIDS death in a given family was the same as the first and that, in effect, the 1-in-1000 ‘ballpark’ figure stood and could be squared.
Nicola Davies QC went on to tell the Appeal judges that the CESDI table set out risk factors which, on the face of the document, painted a picture of possible dependence of a second SIDS death in a family on a range of factors, appearing to reduce the probability of a first SIDS death from a general figure of 1-in-1303 to as low as 1-in-214 if all relevant factors were present.
It has emerged, she told the Appeal Court, that the first of these figures was one of two based on research. The second, she said, was one of the remainder which, according to the evidence of Professor Fleming at the GMC Hearing, were mathematical estimates.
In a situation described as “seemingly bizarre” by Lord Justice Thorpe, Miss Davies described how the table of risks from the CESDI study had been given to the jury at Mrs Clark’s trial without the explanatory text setting out the caveats. On the other hand, said Miss Davies, the table plus the text was given, to Counsel but was not, as far as she could say, to the Trial Judge.
Master of the Rolls Sir Antony Clarke observed that, in such a situation, one might take the view that, on referring to the CESDI material in the witness box, Professor Meadow should have explained the caveats to the Court in evidence, rather than assuming that it was enough that he had given both the CESDI table and text to the lawyers.
Nicola Davies QC argued that the transcript of the first appeal by Sally Clark was the most effective investigation of the role of Professor Meadow, because both Prosecution and Defence teams from the Trial had been involved.
There, she reminded the three Appeal Court judges, the statistical evidence was described as “⬦very much a side-show at trial. The experts were debating the incident of genuine SIDS (unexplained deaths with no suspicious circumstances) in a case where both sides agreed that neither Christopher’s death nor Harry’s death qualified as such⬦.Just as the statistics had formed only a small part of the trial, they were only a small part of the summing up.”
Miss Davies said that, in her submission, the errors made by Professor Meadow were compounded by the way in which cross-examination questions had been framed by Defence Counsel at Mrs Clark’s trial, which had, she continued, reinforced the misunderstandings.
Closing the Appeal, Roger Henderson QC for the GMC said that Professor Meadow was “an eminent man who had not seen the error of his ways.” Continuing, he said, that “had he acknowledged this, maybe no action would have been appropriate” as a sanction when the Panel heard the case against him.
However, said Mr Henderson, the Council accepted that, as he “now no posed no risk to the public”, striking from the Medical Register was unnecessary. He asked the Appeal Court, if it upheld the Panel finding of serious professional misconduct, to ban the paediatrician from all but, what he described as, “unavoidable” medicolegal work.
Judgement, which has been reserved, is expected to be handed down in the autumn.