Is your statement of truth, true? If not, cease practice now!
This article continues the look at the dangers of false or misleading reports.
In my last article we saw how Dr Zafar avoided going immediately to prison for contempt of court after providing an inaccurate and untrue medical report; he subsequently signed an incorrect witness statement in an attempt to explain the changes that had been made to the expert report. The Court of Appeal held that his suspended sentence of 6 months’ imprisonment (that is he would not actually go to prison unless he committed another offence during the period of suspension) was far too lenient and that the ‘starting point’ for such cases was immediate imprisonment ‘well in excess of 12 months’. However, as the Court of Appeal guidance was the first of its kind, the Court did not in fact alter his sentence, so he remained a ‘free’ man (but subject to the suspended sentence).
It might have appeared that Dr Zafar (and his business churning out about 5,000 medico-legal reports a year) got off lightly. Now read on…
It should also be noted that the Court of Appeal considered that the act of the doctor in putting forward his revised – and false – report as his independent and honest account, was more serious than his subsequent false witness statement seeking to explain away the revised report.
Dr Zafar’s professional status
That dealt with the direct consequences of the contempt. But what about his professional status?
The Medical Practitioners’ Tribunal heard the case in relation to Dr Zafar’s professional misconduct and imposed a 12-month suspension from practice, finding that erasure would be disproportionate. At that hearing, somewhat extraordinarily, the Court of Appeal’s judgment in the contempt case was not put before the tribunal. This was by agreement between the doctor’s representatives and the GMC.
Both the GMC and the Professional Standards Authority for Health and Social Care appealed the tribunal’s decision to the Divisional Court. There it was held that in the absence of the full evaluation of the case by the Court of Appeal in the contempt proceedings, including the indication that an appropriate prison sentence would have been an immediate one of ‘well in excess of 12 months’, the tribunal would be dealing with the case on a misleading basis.
The doctor’s dishonesty had not gone to his clinical practice but to his medico-legal practice, and his conduct caused serious problems for the administration of justice and undermined the trust that courts place in expert witnesses; trust which is key to the proper operation of justice.
Normally, on an appeal against sanction, the appeal court would be reluctant to depart from a tribunal’s assessment of the effect of misconduct where that relates to clinical performance, but here that was not the case.
In relation to the conduct of his medico-legal practice, the doctor had shown actual dishonesty and sustained recklessness. His exploitation of his position as a doctor and expert witness struck at the very heart of the administration of justice and abused the trust which the courts accorded to experts.
The Divisional Court held that only erasure reflected the gravity of the conduct or achieved the objectives of promoting and maintaining public confidence in the medical profession and in maintaining proper professional standards and conduct.
Amendment of the statement of truth
With cases such as that of Dr Zafar (and there have been several high profile cases of the administration of justice being affected by the false evidence of professionals) an amendment has been made to the Practice Direction to Part 22 of the Civil Procedure Rules altering the statement of case used for witness statements (and on a number of other statements of truth) to reinforce the seriousness of the statement and the potential for sanctions for untrue documents used in court proceedings.
For witness statements the statement of truth now has a second additional sentence and reads:
‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
Curiously no amendment has been made to the statement of truth required under Part 35 for an expert report. The Practice Direction continues to state that ‘Rule 32.14 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth’. For those (few) who turn to Rule 32.14 they will learn:
‘Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
The seriousness of conduct such as Dr Zafar’s cannot be overstated. A dishonest medico-legal report, or a false statement of truth on such a report, is likely to result in the report writer not only going to prison but in losing their livelihood. There is no room for dishonesty in medico-legal work. But even sloppiness in report writing, the by-product, for example, of a cursory examination or cursory consideration of medical records, fuelled perhaps by time constraints, could result in a statement of truth being false. If there is any qualification necessary in how an opinion has been reached, and as to the ‘quality’ of that opinion, then that must be fully explained within the report.
The statement of truth required for expert reports may not have been strengthened but expert witnesses should not need to be reminded that they are liable to be prosecuted for contempt if they sign off an expert report without an honest belief in its truth. And if found in contempt, the expert can expect some time in prison followed by a change in career.
Learning point in the time of Covid-19
It may be appropriate in certain circumstances to carry out an examination for the purposes of a medico-legal report by video (Skype, Zoom etc.) Any limitations in that process, or resulting from that process, must be fully explained within the report, and any qualifications to the opinion which are necessary as a result, must be spelt out in the report. Only that way can the clinician confidently sign the statement of truth.
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations and in particular for Professional Solutions (www.prosols.co.uk) . He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk), and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net.