It used to be the law that an expert could not give an opinion on the ‘ultimate issue’ which a jury was required to decide in a case.  To do so would usurp the role of the jury.  In civil cases we rarely now see juries, and judges hearing a case on their own are usually not too concerned if an expert does address the ultimate issue.  In expressing an opinion as to whether or not the standard of care fell below that of a reasonably competent practitioner in that field (Bolam) an expert should not express an opinion as to whether or not the practitioner was ‘negligent’ as that is a matter of law for the judge, but that decision will flow inevitably from the decision as to whether the standard of care fell below the standard identified by the expert, which the expert’s opinion directly and expressly does address.

In a criminal case, greater care is needed when the expert addresses the ultimate issue.  On a criminal appeal[1] in 1993 it was said that ‘if there is such a prohibition, it has long been more honoured in the breach than the observance. … Since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is obvious, the rule can only be… a matter of form rather than substance.  In our view an expert is called to give his opinion and he should be allowed to do so.  It is however important that the judge should make clear to the jury that they are not bound by the expert’s opinion and that the issue is for them to decide.’

In R v Pora[2] the court[3] was concerned with a psychologist who gave evidence as to the unreliability of a confession in relation to a criminal allegation.  It was emphasised that it was the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues.  ‘The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case ….’  The court concluded that ‘in general, an expert should only be called on to express an opinion on the “ultimate issue”  where that is necessary in order that his evidence provide substantial help to the trier of the fact.’  The expert may address all those matters which might render the confession unreliable in the particular case, but should not express an opinion on the matter the court had to decide, whether the confession was in fact unreliable.

This was the issue troubling the Court of Appeal last week in the appeal of colorectal consultant David Sellu[4] against his conviction for manslaughter on the basis of his gross negligence causing the death of a patient.  Expert witnesses in the trial were repeatedly asked whether the negligence, or the falling below the standard of a reasonably competent colorectal consultant, was ‘gross’, and on a significant number of occasions stated that that was their opinion.  The fact that they were allowed to give this evidence (and therefore to express an opinion on something which sounded perilously close to the ultimate issue) was not a ground of appeal.

However the appeal was allowed (and the conviction quashed)[5] because the judge did not adequately direct the jury on the meaning of gross negligence for the purpose of establishing manslaughter – that is that the negligence must be gross ‘in the sense that it was truly exceptionally bad and was such a departure from that standard that it consequently amounted to it being criminal and thus the criminal offence of gross negligence manslaughter’.  In addition, in response to a question from the jury asking for clarification, the judge did not repeat the direction to them that the issue of gross negligence was a matter for them and not for the experts, even though the experts had stated their opinions on this.

In one sense the experts had not addressed the ultimate issue – that is whether there had been such a departure from the required standard that it consequently amounted to the conduct being criminal and thus the criminal offence of gross negligence manslaughter, but the experts were permitted to address the question of whether in their opinion the departure from the required standard was ‘gross’.  However their opinions were only a matter of consideration for the jury, who were, or would have been if fully directed by the judge, free to give the opinions such weight as they chose.

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[1] R v Stockwell [1993] 97 Cr App R 260

[2] [2015] UKPC 9

[3] The Privy Council which consists of judges of the Supreme Court

[4] [2016] EWCA Crim 1716

[5] Other grounds of appeal based on new expert evidence were rejected

The Royal College of Surgeons has recently issued written guidance on obtaining appropriate consent from patients in the light of the Supreme Court decision in Montgomery (RCS Guidance on consent (October 2016)).  This is a comprehensive guide on obtaining proper consent in a variety of different situations and provides useful guidance for anyone,  not just surgeons, involved in clinical treatment.

To comply with the law, to avoid civil claims for damages and to avoid investigation by the GMC most clinicians need to develop a change of approach and need to reappraise how consenting can most effectively be carried out by them in the particular circumstances of their practice:

‘With a robust and well-defined consent process, and by using patient decision aids, checklists and information leaflets provided in advance of the consultation, the time available can be optimised to ensure that patients are empowered with the information they need to make a decision and take responsibility for their care.’ (para 4.11)

Doctors worry about how they will find the time to comply with the Montgomery decision (and, I would add, should worry about how they comply with the existing GMC guidance on consent – ‘Consent: patients and doctors making decisions together’).  The RCS recognises the issue and gives, as I have done, the correct uncompromising advice:

‘The reality facing surgeons in current practice is that time pressures can leave little opportunity to discuss at length the diagnoses or available treatment options. However, this does not change the fundamental legal requirement that surgeons and doctors allocate sufficient time for a discussion that will allow them to understand the individual patient and their needs. According to the judges in the Montgomery case, ‘even those doctors who have less skill or inclination for communication, or are more hurried, are obliged to pause and engage in the discussion which the law requires’.’ (para 4.11)

I am often asked by clinicians when speaking on consent and the implications of Montgomery how they can prove what in fact took place between doctor and patient so as to answer any subsequent criticisms.  Paragraph 4.10 addresses this:

‘In addition to completing the consent form, surgeons should maintain a written decision-making record that contains a contemporaneous documentation of the key points of the consent discussion (see Section 4.1 for the information that needs to be provided) – and the patient’s decision, even if the patient decided not to undergo a procedure or have any treatment. This could be in the form of a letter to the patient and their GP/referring doctor. The record should also contain documentation of any discussion around consent with the patient’s supporters and with colleagues. Any written information given to the patient should also be recorded and copies should be included in the patient’s notes.’

Excellent advice.  But now the clinician must ensure that the necessary records and documentary trail have been developed to produce such a ‘decision-making record’ as accurately and comprehensively as possible in the minimum of time.

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