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Few things are more likely to cause the heart to sink than a call to say that one will be needed for court in care proceedings. Parents may be fighting to keep not only the injured child but possibly other siblings and unborn children. The doctor caught up in all this, whether paediatrician, surgeon, psychiatrist, pathologist or general practitioner, can be sure that any opinions will be exposed to the closest scrutiny. The prospect of days wasted, turning up to find the case settled, postponed or cancelled, not to mention the time actually spent giving evidence, is an added cause for gloom. A recent development, that of meetings between experts—although designed primarily to smooth the process of the legal proceedings—also brings the prospect of reducing or obviating the need to attend court, and thus a considerable saving in time and stress.
Disagreement and misunderstandings are common
Doctors may not always agree on aspects of individual cases of alleged abuse, especially if they happen to be instructed by different parties to the proceedings, where they may be privy to information not put before the court from their instructing party. Even when they do agree, attention to detail by a legal eye opens up the prospect for disagreement, real or apparent. In the past, doctors advising different parties in such cases were discouraged or actually disallowed from discussing the case with one another. This could sometimes lead to days being spent in court, discussing all aspects of the medical evidence, including both agreed and disagreed points. It tended to emphasise the adversarial nature of the proceedings, sometimes leading doctors to forget that, as experts, their job is to assist the court and to remain non-partisan. In Re AB1 it was held that where the medical evidence points overwhelmingly to non-accidental injury, any expert who advises the parents and the court that the injury has an innocent explanation has a duty to ensure that all available material has been carefully considered and that any opinion can be objectively justified. In Re R2 it was held that experts should not mislead by omissions. The expert should consider all the material facts in reaching conclusions and must not omit to consider the material facts that could detract from the concluded opinion. Furthermore, in Re AB1 it was held that the expert should be wholly objective, and should not simply argue one side of a case. Where a report has been obtained by one party to the proceedings and is unfavourable to that party, it cannot be suppressed, and it must be filed with the court and served on all parties.
Proceedings concerning children are now seen as more inquisitorial, searching for the best solution for the children involved, and it has become the norm for courts in cases concerning children to direct that doctors should discuss a case well in advance of any final hearing. This imposes an obligation on a doctor to explain and discuss any opinions and the reasons for them with the other experts.
Need for liaison
Meetings between doctors may help to bridge gaps between different specialties or between different opinions. It is common (although by no means guaranteed) for differences of opinion to melt away once colleagues understand each other’s reasons. If there is any prospect of this happening, it is desirable that it should occur before a court hearing, rather than wasting days of the court’s and the doctors’ time. Naturally, it is not the intention that the process of discussion should force doctors to change their opinions unwillingly. This kind of medical discussion can take place either before or after medical reports have been prepared, or at both stages. Discussion can take place on the telephone—perhaps a conference call—or at a special meeting.
Prehearing meeting of experts
Doctors involved in proceedings involving children should expect to attend a prehearing meeting with the other experts.3Before such a meeting it is common for the legal experts to have focused on issues that may have been peripheral to points made in the medical reports. Once medical reports have been prepared, the solicitors or barristers are likely to produce lists of questions to be addressed by the doctors. Where possible, these lists are collated by the coordinator to avoid duplication, and are then provided to the experts in advance of the meeting and used as a basis for discussion at the meeting and (hopefully) answered at the meeting. The solicitor for the child(ren) and the guardian ad litem are usually given the task of coordinators; other lawyers do not usually attend the meeting.
Schedule of areas of agreement and disagreement
It is usual for the coordinator to prepare a document containing the results of the discussion and answers to the questions posed in the form of a schedule of areas of agreement and disagreement. This is to ensure that the subsequent court hearing is focused on areas that have not been agreed, rather than roving over much wider territory. There are no rules about the format, but in general the schedule consists of a series of statements or propositions, each usually one or two sentences long. Below each item, there is a list of the names of the doctors who agree, disagree, or are unable to comment. Inability to comment may be because the doctor has not had sight of specific items (such as photographs of bruises) or because the subject lies outside his or her area of expertise. A doctor may wish to add conditions or comments to a response, and these comments would usually be reported verbatim in the schedule, which when complete requires the signatures of all the contributing doctors (fig 1).
Questions for the experts
The questions provided by legal representatives can pose a real problem for doctors. Take, for example, a 12 month old child with an unusual degree of bruising on the face and the back, and a healed tear in the lip frenulum, in whom a skeletal survey shows a couple of healing rib fractures, with no convincing explanations for these injuries. The doctor forms the view, taking the overall picture into account, that it is likely that this is a case of child abuse. When asked to discuss each injury individually and to focus on whether the cause is likely to be non-accidental, doctors can find this somewhat artificial exercise frustrating. Another problem for doctors is being asked to give a precise figure of probability, something that is rarely done in clinical practice. A judge, however, may not be satisfied with a medical opinion that an injury is “on the balance of probability” non-accidental. This could mean anything from a 51% to a 100% degree of certainty, and a court may insist on the doctor not only attempting to make a more precise estimate of probability but also justifying the estimate, and explaining the mechanics of the injury—the possible causes and the most likely cause. The days when doctors could simply give an opinion and expect it to be accepted unchallenged have long since disappeared, and it is likely that one will have to back up opinions with data and clear reasoning.
The introduction of meetings between experts has reduced the areas of conflict and the need for doctors to attend court in cases of alleged child abuse. Meetings between experts work best if an agenda of questions is set by the legal representatives.