Expert witness immunity lost
Expert witnesses will no longer be immune from litigation brought against them in civil courts by their clients. The change in law follows a UK Supreme Court decision, announced in March, which was triggered by a case involving a clinical psychologist.
A man struck and injured by a car - the appellant - had been diagnosed as suffering PTSD by his psychologist, liability had been accepted by the driver, and damages were due to be awarded. However, the psychologist subsequently signed a joint agreement with the driver's psychiatrist, who was acting as an expert for the defence, in which they both agreed the man had exaggerated his symptoms - he therefore received significantly reduced damages. Because of this, the appellant attempted to sue his psychologist for negligence - a case that was thrown out because of expert witness immunity. The man appealed, the case went to the Supreme Court, and the law has now been changed.
Professor Graham Davies of the University of Leicester is on the British Psychological Society's Advisory Group on Expert Witnesses. 'This narrow decision by the Supreme Court removes at a stroke the 400-year-old immunity which experts have enjoyed in our courts,' he told us. 'Though the expert in the case appeared clearly at fault in ignoring the content of their own report in signing up to a joint report, the wholesale removal of immunity runs a serious risk that psychologists and other experts could be the subject of formal complaints or time-consuming litigation by disappointed clients, as emphasised by the minority opinion on the court.'
In related news, the Law Commission has published recommendations and a draft Bill regarding the admissibility of expert evidence in courts in England and Wales. These developments follow a consultation that started in 2009, to which the BPS was a contributor.
The main thrust of the draft Bill is that a new test should be established to ensure that expert evidence is reliable and impartial. According to Professor Davies, specific features of the draft Bill consistent with the Society's submission include a recommendation that judges should be more proactive in ensuring that expert witnesses are not lured away from their areas of expertise under cross-examination, and that judges should be given new powers to consult with external experts to help them determine whether expert evidence is reliable or not.
Professor Jane Ireland, head of the BPS Advisory Group on Expert Witnesses, said the draft Bill is very welcome, especially since the English legal system has lagged behind other countries on this issue. 'If the Bill comes to fruition as it is hoped, then it will for the first time more clearly assist judges in what makes good "psychological science" versus either "specialised knowledge" or "junk science",' said Ireland, who holds positions at the University of Central Lancashire, Mersey Care NHS Trust High Security and Åbo Akademi University, Finland. 'The latter [junk science] has unfortunately enjoyed some presence in the admissibility of evidence from experts. More attention is certainly being given to the admissibility and quality of expert evidence, with the judiciary also currently funding a study into the quality of expert psychological assessments.'
What about the implications for Society members who work as expert witnesses? 'Experts need to keep a sharp focus on the importance of this Bill and use it to assess the quality of the measures that they are applying in Court so that they do not mislead the Court into a judgment that is later appealed or may lead to the expert being disciplined,' Ireland advised. 'Experts carry considerable weight in a number of cases and their methods will at last be open to more detailed scrutiny prior to its admission.'
- Access the draft Bill at tinyurl.com/3rfv3qp
- further information on the Supreme Court decision at tinyurl.com/3e8ccvz
