RSS Feed

Judgment critical of delay from expert

 

It’s a very sad indictment that if told that there’s a family law judgment about a medical expert who was egregiously late in filing a report and not very communicative in what was happening, a large number of family lawyers would be able to guess who it was without reading the judgment.

 

I think it is probably the problem that you see very often on a small scale, but here writ extraordinarily large.  Expert A does a report, people think it is great. Next time an expert is needed, they say “go to Expert A”, when colleagues mention a case they say “oh, you should get Expert A”,   Expert A’s workload increases exponentially, because the more work they do the more work they get and more recommendations were made. Then the volume becomes overwhelming and timescales slip. Generally, there’s then a rebalancing and the expert decides to say “no, I can’t take anything for four months, I’m snowed under”.  It becomes an even greater problem when the expert is really good AND practising in a field where there’s high demand for an expert of that discipline, and limited supply. I imagine it just becomes harder and harder to say no, and the volume just becomes utterly unmanageable.

 

            X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 (11 March 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B9.html

 

The judgment names the expert, but I’ve chosen to anonymise it.

 

For many years, Dr __________  has regularly been instructed as a medical expert witness in cases proceeding in the Family Court. She has had a distinguished career. As a consultant paediatrician, she is held in high regard. It is particularly sad, therefore, that at the end of her career she should face the kind of criticisms from the court that I am about to set out in this judgment. Put shortly, the problem is one of delay and failing to honour commitments and promises made to the parties and, through them, to the Family Court. It is appropriate that I should consider separately Dr ________’s failings with respect to X and Y.

 

40.          So it is that six months after Dr ______________ was instructed to prepare a report in respect of X and four months after she was asked to prepare a report in respect of Y, neither report has been written. Neither X nor Y has been seen by Dr _________________. It very much appears to be the case that Dr __________________ has thus far spent little, if any, time reading the medical records that have been made available to her.

  1. The parties have come to the conclusion that in terms of both time and cost it would be appropriate for Dr __________’s instructions to be terminated and an alternative expert instructed. I agree.
  2. That leaves an outstanding issue concerning Dr ______________’s fees in respect of any work she can prove she has undertaken since she was instructed. Without hearing argument on the point I am unable to resolve that issue. However, in light of the history set out above it is at this stage difficult to see how any fee could be justified.

 

49.          The Family Court is heavily dependent upon medical experts from a wide range of specialties to assist it in dealing with some of the cases that come before the court. Experts are required to assist the court in determining threshold issues – for example, in determining whether a child’s injuries have been sustained accidentally or whether they are inflicted injuries, in identifying the likely mechanism by which injuries were caused, in identifying the likely window of time within which the injuries were sustained. Experts are also required to assist the court in making welfare decision – for example, as to whether the child is suffering from any mental or psychological difficulties and as to her treatment or therapeutic needs. The Family Court simply could not operate without the assistance of medical expert witnesses.

  1. However, it is also the case that although the Family Court needs the assistance of medical experts it also owes a duty to the child concerned to determine the proceedings without delay. That is a statutory obligation clearly set out in s.32 of the Children Act 1989. As Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations makes clear, it is also an obligation that is placed on medical expert witnesses.
  2. There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied. Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met. Courts and experts must work together in a co-operative co-ordinated way. That simply has not happened in this case.
  3. A draft of this judgment was provided to Dr ___________ in advance of today’s hearing. She was invited to attend court today to make representations before the judgment is handed down. Dr ______________ did attend.  She handed in a letter explaining the personal difficulties she has faced in recent months. The explanation she gave was much the same as the explanation she has previously given to the parties’ solicitors. She was profusely apologetic for her failings in this case. She indicated that she has decided not to accept any further instructions in cases in the Family Court.
  4. I am deeply concerned about the way Dr ______________ has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.

 

Advertisements

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

15 responses

  1. report her to her regulator who will slap her wrist

  2. Na I’m sorry but I don’t agree I find this wholly wrong to tarnish an entire professional career for one screw up on time keeping when quite frankly las do it day in day out

    It entirely undermines their hard work for the rest of their career she assured she wasn’t taking any further court work she had personal circumstances arise and was genuinely sorry

    Had she wrote a half assed sloppy report than yes but rather than committ to poor work she choose to hand none in surely that says more about her character than anything else

    Poor dr and shame on that judge naming and shaming 😑 x

    • I sort of agree that maybe it should have been a private dressing down , but it isn’t one case. Almost all family lawyers could guess the name even if the Judge had anonymised it

    • I am sorry but the doctor crossed the line and it is clearly a matter for their regulator to consider and the Judge could and should have passed a copy of his judgement onto the appropriate regulator to allow them the opportunity to consider it and then decide what action if any they wished to take against the doctor. This is not a case where such expressed concerns by a Judge should be swept under the carpet

  3. I agree with your summary of the cycle in relation to popular experts (volume of work increases exponentially the more well known they become, etc etc) but I think – as a general rule – that there are more nuanced reasons why experts are regularly reporting late, a number of which are outside the expert’s control.
    These include late provision of court documents/difficulties obtaining responses from solicitors on important points/late amendments to the scope of the assessment (which can sometimes dramatically increase the time required for a report, without there necessarily being a corresponding increase in filing time)/subject children being placed hundreds of miles away because of a shortage of secure accommodation, etc (to name a few). Essentially, it boils down to the fact that practitioners working in the family courts are doing so under immense pressure and the cracks are showing.
    Not sure this judgment is fair to this particular expert or – as a wider point – helpful when there is already a shortage of experts willing to report at legal aid rates in certain areas…

  4. Naming or shaming; or not – sad that that may be HHJ Bellamy’s last published judgment – unless he’s got a couple lurking and still to be written and published….

  5. As professor Jane Ireland remarked in effect in the Survey she took for the government “Most of the experts hired by the courts are hired guns chosen to condemn parents accused by social services of faults that disqualify them from keeping their children”
    Those rare Experts that support parents are rarely asked for their opinions a second time thus costing them thousands of £s of easy revenue. Most grab the cash and stifle their conciences ……….

    • I so agree with Ian Joseph’s comment and I know of many other people who would also agree. As for HHJ Bellamy…. he is a fine one to talk. He kept a case in family court for 4 years because he repeatedly insisted on numerous expert reports because he didn’t like the ones he received – and he didn’t like them because they didn’t fit with his own agenda. He allowed a certain lawyer to lie in and manipulate court orders and punished us for highlighting it. He openly admitted he hadn’t looked at any of the evidence or read any submitted position statements because he hadn’t had time. He’d had 4 years…. thank goodness he has now retired – not before time.

      • This is the same judge who got a lot of publicity for criticising a supposedly innaccurate report in an article in the Telegraph by my friend Christopher Booker .
        The ridiculous idiot judge actually spotted the innaccuracy (floppy arm when it should have been broken arm) in my website http://www.forced-adoption.com .
        I was flattered indeed that old Bellamy read my comments so avidly but he really should have blamed me for the error rather than Christopher who was as usual 100% accurate on the medical points when he wrote about the case on Sunday
        In my own defence I should in fairness mention that I published the information on my site before the full medical détails were available and three days before Christopher published his entirely accurate article in the Sunday Telegraph .
        Just because Christopher sat next to me in the court did not make him responsible for anything I wrote despite Bellamy seemingly lumping us together as two undesirables !

  6. I like many others of you have used this expert. I also knew who it was without the name. In my opinion she was a competent, kind and caring paediatrician. I have no idea why she agreed to take on work that she could not manage or why at some earlier point she did not simply pull out. It may have been that she didn’t want to let anyone down and each promise was given in good faith. I have heard many lawyers complain about her timekeeping but I have not heard anyone complain about her work or the reports she has produced. One less paediatrician now which leaves very few indeed to access for care proceedings and maybe a few less will agree to do the work after this judgement. I would just add I totally disagree with the last comment which is not helpful to anyone and in my experience not the case.

    • Ms Tynan exactlly what comment do you mean as whilst you know the rest of us do not or at least I do not and others may be reluctant to ask for fear of being portrayed as not knowing what you or what you were going on about

  7. Oh Nicole ! Interesting that you disagree but why??????????
    How can you say “not the case” when Christopher and I were in court and everything really did happen exactly as described !

  8. Good piece but why are you hesitant re naming Dr Kathryn Ward in the blog when you have been willing to named Social Workers who have also been criticised. President of the Family Division probably wouldn’t be consulted re the criticism of a social worker either!

  9. “Expert A does a report, people think it is great. Next time an expert is needed, they say “go to Expert A”, when colleagues mention a case they say “oh, you should get Expert A”, Expert A’s workload increases exponentially, because the more work they do the more work they get and more recommendations were made. Then the volume becomes overwhelming and timescales slip.”

    Interesting how there is a distinct lack of analysis of this turn of events. It’s highly notable that the word of mouth recommendation of an expert among LAs, in actuality means that the expert wrote a convincing report on behalf of the LA (achieving the LA’s agenda), so all the other LAs thought they would have a slam dunk if they used the same expert.

    Isn’t it sad, that convincing a judge is all that it takes, regardless of the truth of the matter

    Isn’t it shocking that the LAs think more of taking children on the basis of convincing judges, than of the truth and the child’s interests. Such that they will eagerly seek the services of such a convenient expert.

    Doesn’t this just show up the child protection industry for what it is.

    This is why people describe the use of experts as a gravy train. 2012 article but as relevant today as it was then: “Family courts and how incompetent (but highly paid) so-called experts are failing children” https://www.dailymail.co.uk/debate/article-2114616/Family-courts-incompetent-highly-paid-called-experts-failing-children.html

    There are so many variables that can make an assessment by any expert wrong. Any expert who is (as in this case a paediatrician, so in effect a generalist, like a GP for children) either not an expert in a particular field or is only an expert in a particular field, is highly prone to coming to the wrong conclusions. Generalists may not have sufficient expertise in particular issues so can get it wrong. Experts in one field can be viewing a situation through the lens of their own expertise and not realise they are wrong.

    Then there are the surprising number of parents who come out with miraculous mental health labels, to suit the LAs purposes. Don’t get me started on supposed psychiatric disorders, aside from the Rosenhan experiment, they are labelling everything as a mental health condition these days.

  10. strike her off !!

%d bloggers like this: