Expert assessment

Is the goverment right to be concerned about the impact of "so-called experts who provide evidence which is simply not up to scratch"?

The comment from Justice Minister, Lord McNally came alongside the announcement of a review into whether there is a trend towards "expert witnesses '¨to provide unnecessary and costly '¨evidence" and the impacts of such delays '¨on court cases.

In cases concerning children, whose welfare is always uppermost in the court's mind, and invariably the paramount consideration, it is always important for the court to have the best evidence available so that the right decisions are made. It is unsurprising that courts have been willing, perhaps too willing sometimes, to endorse the use of experts to achieve this end.

However, soon judges will have to satisfy themselves of two matters before allowing a party to instruct an expert. Firstly, the report must be necessary for the just determination of the case and secondly that the expert will have to be appropriately qualified to give a reliable opinion on the matters they are asked to address. The government's consultation focuses on the second of '¨those issues.
There is currently an understandable political requirement that the length of proceedings concerning children in care cases should take no more than 26 weeks. In a routine care case (involving chronic neglect with no suggestion of deliberate injury to a child) it is not unusual to have assessments by an adult psychologist, a consultant child psychiatrist, an adult psychiatrist, an expert on the existence, or otherwise of intoxicating substances in a person's hair, or blood samples, and an independent social worker.

In addition every care case has two expert parties, being the local authority social worker and the children's guardian, also an experienced social worker.
Rarely does the external expert evidence provide an opinion that is unexpected to the professionals involved in the case.

One must ask: was the report necessary to the determination of the key issues? Often, in my view, the answer is no. Has the delay been worthwhile from the child's perspective? Often, the answer is also no.

However, if the report is necessary for the just determination of the case then it is absolutely vital that the information it contains can be relied upon, for in the context of 26 week proceedings, second opinions will be very hard to justify.

The reason that lawyers use experts is that the information required to determine the case is outside of the court's general knowledge, and cannot be provided by the parties. By definition, it is therefore difficult for a lawyer to assess whether or not information about which they are not expert is reliable.

As a lawyer I can tell if an assessment does not answer the questions put to the expert, or if in answering the question, the expert has clearly taken into account material that they were not entitled to, for example assuming that a disputed fact is, or is, not true. But if the expert appears to answer the question, with due regard to relevant evidence, I am not in a position to know whether or not their professional opinion is sound or not.

The consultation sets out proposed standards which should be met by every expert instructed to give their opinion in a case concerning the welfare of children.

The proposed standards are not controversial, comprehensive and reasonable minimum requirements, and if those standards are met there should be confidence that the expert is qualified to provide the court with required information. But often the only person in a courtroom who is likely to know if the expert meets the standard is the expert themselves.

However, the expectation is that the solicitor seeking to instruct the expert should satisfy themselves that they meets the standards. To my mind, this is where difficulty lies. I do not think it is reasonable to expect that solicitors have to double check the qualifications and the existence, where appropriate, of relevant practicing certificates.

The consultation meets this concern to some extent in that it asks whether experts should be required to certify that they meet these standards when they complete their report. But to my mind, laudable though the suggestion is, it comes late in the process, since by that stage the report is written and time and money have been spent on its preparation.

In my view, the court should require a party seeking permission to instruct an expert to submit a statement from the proposed expert signed with a statement of truth confirming:

 the contents of their CV are accurate;

 that they have seen the draft letter of instruction, which includes an anonymised outline of the nature '¨and extent of evidence already '¨available in the case, and the '¨proposed questions;

 that in the light of that information they meet each of the standards expected of an expert for that particular instruction; and

 they understand that making a false statement as to their qualifications could render the expert liable for contempt proceedings.'¨

That certification should then be reproduced at the end of the report confirming that the expert is qualified to give the opinions so expressed. If this makes experts think twice before committing to undertake an instruction, then in my view that can only '¨be a good thing