Category: medico-legal

Being alert to potential conflicts of interest

geyre

Experts providing their services in court must be alert to the situations in which conflicts of interest arise, or may potentially arise, or in which the appearance of such a conflict might arise.  This is part of the requirement of independence on the part of an expert:

Experts must provide opinions that are independent…

Para 11 of Guidance for the Instruction of Experts to give evidence in Civil Claims (‘the Guidance’)

This requirement long pre-dated the introduction of the Civil Procedure Rules in April 1999.

In EXP v Barker [2015] EWHC 38 the court deprecated a medical expert who, it transpired (in the course of cross-examination), had worked for a considerable time with the party in whose favour he was giving evidence, and whom the expert regarded as having ‘guided and inspired his practice’.  Worse still it was the party who had recommended the instruction of the medical expert, whom he knew well, to act on his behalf.  The loss of independence, and the conflict of interest, which could well arise in this situation, and most certainly the appearance of a loss of independence or conflict of interest, fatally damaged the credibility of the expert in the litigation.  It must also have been extremely embarrassing, both personally and professionally, for both the expert and the clinician who suggested his instruction.

To help guard against this situation, in the High Court in clinical negligence claims the standard direction states that:

Experts shall, at the time of producing their reports, produce a CV giving details of any employment or activity which raises a possible conflict of interest.

Whether or not that direction appears in a court order, an expert should follow that guidance whenever providing a court report, and disclose anything which might raise a possible conflict of interest.

In the recent case of Secretariat v A Company [2021] EWCA Civ 6 for the first time the Court of Appeal was required to consider (1) the duties on an expert engaged on two potentially conflicting retainers concurrently, and (2) whether such duties bound all relevant entities within the expert firm. The case concerned an international consulting firm which was providing expert witness services for opposing sides in two separate but closely related international construction arbitrations, in one acting for Company A in a claim brought by a subcontractor and in the other acting for a project manager claiming against Company A.  The expert was a different entity within a group of corporate entities.  The court granted an injunction preventing the expert in the second claim acting against Company A for whom a related expert entity acted.

The question arose as to whether it can be implied in law that an expert has a fiduciary duty owed to the party from whom it initially took instructions which prevented it from getting into a situation where a potential conflict of interest could arise.  The Court avoided deciding the case on this basis, relying instead on the express terms of the retained between the expert and the Company, which construed in context were found to prohibit conflicts of interest throughout the duration of the engagement as expert.  The Court also found that the entire corporate group of expert companies was bound by that provision.

It was the overlap of parties, roles, projects and subject matter that was “all-pervasive” and gave rise to a clear conflict of interest as a result of the second expert engagement as the two experts could plausibly find themselves supporting opposing positions on the same or substantially similar issues. 

It is interesting to note that the Court also found that the conflict of interest would arise whether the expert was intended to give evidence in court or was taking a wider advisory role, while recognising that greater conflicts of interest are likely to arise where an expert had been involved in the preparation of the client’s case from an early stage.   

It was also stressed that existence of a conflict of interest is a matter of degree, and that the Court’s observations in the present case should not be taken as concluding that the same expert cannot act both for and against the same client in relation to a different project. 

What should the expert take away from this:

  1. An expert must be aware of the potential for a conflict of interest and if in any doubt disclose the facts on which the potential conflict could be argued to arise.

Particularly in clinical negligence claims, for a clinical expert it might be difficult to avoid situations in which the expert has some knowledge of the individuals whose conduct is under scrutiny to the Trust or hospital at which the events occurred.  There must be recognition on the part of the expert that an appearance of conflict of interest (or loss of independence) might arise, whether that is potentially favourable or unfavourable to the party being criticised.

Conflicts of interest can arise in many ways.  An expert instructed to report for the purpose of defending a claim against a health provider could find a potential conflict of interest in accepting instructions in a claim against that health provider while the first claim is continuing, depending on the circumstances of the two claims.  An expert receiving frequent instructions from the same solicitor, to the extent that that provides a significant income, could, depending on the nature of the relationship, arguably experience a conflict of interest because providing an ‘unhelpful’ report might prejudice that income stream.

2. Prompt disclosure of any such potential conflicts is essential. Ideally this should be when the expert is instructed, but sometimes such potential conflicts only become apparent at a later stage, for example when all of the medical records have been obtained. 

It is better to provide the facts which could arguably be said to raise the potential for an appearance of a conflict, and explain why in fact there is no such conflict.  For example, a clinical expert might have worked previously in a Trust or department or with a person whose actions or defaults might be the subject of the investigation, but any contact might have been fleeting or many years ago, and therefore considered by the expert as not giving rise to a conflict of interest.

3. The potential for conflicts of interest should be clearly addressed in an expert’s terms of engagement.  This may need be no more than a statement that “the expert confirms that they are not conflicted to act as an independent expert in this matter”. 

In Secretariat the expert was asked to confirm in terms similar to those above before being instructed and carried out a conflict check following which the expert confirmed that there was no conflict.  The subsequent letter of instruction confirmed that the expert would provide an unbiased opinion as an independent witness and that the expert would comply with the relevant arbitration Expert Witness Protocol, which contains requirements similar to the Practice Direction to Part 35 of the Civil Procedure Rules and the Guidance.  As a result, there was a contractual duty to avoid conflicts of interest.

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Admissibility in evidence of covert recordings of expert examinations

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It has been a matter of some concern among medical experts that examinations by them of a claimant might be secretly recorded, and if they were, whether the recording would be admissible in evidence to challenge or contradict the expert’s evidence about the examination.  In the recent case of Mustard v Flower [2019] EWHC 2623 (QB) a Master (procedural judge) in the High Court had to rule on the admissibility of the evidence of just such covert recordings made by a claimant.

The claimant’s action raised the question of whether or not she had suffered organic brain damage in a relatively low speed road accident.  The claimant made covert recordings of her examination by several of the defendant’s experts.  In relation to the neuropsychologist, the recording of the formal testing was asserted to have been made accidentally but in relation to the other experts it was accepted that the fact of the recording was intentionally not revealed.

Objections:

The experts complained in very strong terms about the covert nature of the recordings (one said that he felt that the claimant’s actions were wanting in honesty, transparency and common courtesy, that his permission should have been sought and that he felt sullied by what took place; another that she felt professionally violated, distressed, angry and disillusioned). Further, the defendant asserted that the recording of neuropsychological testing (a) raised issues regarding the proprietary rights in the tests, which were not for release into the public domain, (b) rendered the claimant herself essentially “un-assessable” on any future occasion, (c) was capable of changing and distorting the nature and dynamics of the examination and therefore the results undesirably, (d) conferred on the claimant’s solicitors “insider knowledge” of the content and methodology of the tests, and (e) by reason of the foregoing, raised professional conduct issues. Further the defendant’s neuropsychologist complained that because her consultation with the claimant had been recorded and that of the claimant’s neuropsychologist had not, she was unable to scrutinise any shortcomings in his approach and operating methods in the same way that the claimant could, were she to wish to do so.

The defendant further asserted that (1) the recordings were unlawful under the Data Protection Act 2018 and the General Data Protection Regulation 2016/679 and (2) they should be excluded because (a) of the unlawful (or, at the very least, improper) manner in which they had been obtained, (b) they had impaired or undermined the validity of the neuropsychologist’s testing, and, (c) they gave rise to an uneven playing field or an inequality of arms as between claimant and defendant in that only the defendant’s experts’ examinations had been recorded in this way.

Court’s ruling:

The Master rejected the proposition that the recordings were a breach of the Data Protection Act or the GPDR on the basis that Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data “by a natural

person in the course of a purely personal … activity”. Recording a consultation with or examination by a doctor fell into this category and supplying the recordings to her advisers did not take it out of the category. Further, the relevant data related to the patient (the claimant) not the doctor.

Therefore the Master ruled that the covert recordings were not unlawful, even if reprehensible. Given that the claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable, whilst her actions lacked courtesy and transparency, covert recording had become a fact of professional life and was not so reprehensible as to outweigh other considerations.

Because the defendant neuropsychologist’s conduct of her examination of the claimant and her administration of the neuro-psychological tests was put into question, the recording of her examination was highly relevant and potentially probative. The Master regarded the potential of the recording to impair or degrade the results of the neuro-psychological testing by the defendant’s expert as only a marginal factor in the decision on admissibility, particularly given the argument that the testing was impaired by reason of the expert’s own technique and methodology.

The covert recordings of 2 other of the defendant’s medical experts was also found to be relevant and probative, specifically in relation to the claimant’s account given to them of her pre-accident history and the progression of her symptoms and in relation to whether the Waddell sign from the axial loading test was correctly reported as positive.

The future:

The Master did observe that some kind of protocol was needed governing the recording of medico-legal examinations and should be agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers. It was also suggested that it was in the interests of all sides that examinations were recorded because from time to time significant disputes do arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an “industry-wide” agreed model catering for the many issues capable of arising in such cases.

Significance:

The Master’s ruling appears pragmatic and, given the significance of the evidence contained in the recording to issues in the case, appropriate.  It is however a decision made at the lowest end of the judicial hierarchy and does not bind any other judge.  The proposal that all examinations in the medico-legal context be recorded, and effectively held in case an issue arises, would seem likely to be the direction in which we are heading, particularly given the ease and economy with which such recordings can be made, both overtly and  covertly.

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