Squier v GMC

In the recent case of Squier v GMC, [2016] EWHC 2739 (Admin) the decision of a professional regulatory panel was put under an unrelenting and critical microscope by the High Court. The court was emboldened to overturn factual findings, as well as laying down guidance regarding the use of expert evidence.

Dr Waney Squier appealed against the decision of the Medical Practitioners’ Tribunal (‘MPT’) to erase her from the register. Dr Squier had given expert evidence in a number of criminal and family proceedings, challenging the diagnosis of shaken baby syndrome. The charges before the MPT did not relate to her stance on this syndrome, but rather whether she had strayed beyond the proper bounds of expert evidence.

In an unusual and highly interventionist approach, the High Court re-examined every charge that had been before the MPT and the basis for the original finding. A number of these factual allegations were overturned and the court ultimately chose to substitute Conditions of Practice Order in place of erasure.

Whilst Dr. Squier did not escape the decision unscathed – the court, for example, considered she had at times cherry-picked supportive material and brushed over contrary research – the main casualty of the judgment was the MPT itself. The court was persistently critical of its approach, describing certain conclusions as “makeweight” and “overstated”. It noted the MPT “revealed a disturbing lack of understanding and overstatement about what had occurred” in relation to a particular finding of dishonesty (paragraph 135). The court strongly condemned the MPT’s reliance on evidence that they had previously, and correctly, reassured Dr. Squier would not be relied upon. This was described as a “serious irregularity” which “produced an unjust conclusion on a critical question”.

This tone is carried through to a strong conclusion which observes that it would have been “desirable” for the panel to be chaired by a “lawyer with judicial experience” (paragraph 138). This observation would likely have carried a sting for both the panel chair and legal assessor. The recommendation may add momentum to the move towards rolling out legally qualified chairs across the board in GMC hearings.

 SIGNIFICANCE OF THE DECISION

The case is significant in several respects.

It consolidates and reiterates guidance on the proper approach to expert evidence. The following principles emerge from the decision:

1. Advocates must be very careful to ensure that, through their questioning, they are not pushing or prompting a witness to give evidence beyond or outside their expertise.
2. Whilst it may be necessary for an expert to refer to or comment upon the research of others, they should expressly indicate whenever they stray outside their area of expertise.
3. Experts must not misrepresent research or evidence by cherry-picking parts that support their position.
4. Mitting J examined previous case law and set out the core duties of an expert when citing the works of others (paragraph 34). These can be summarised as follows:
   1. The duty to explain that a hypothesis is controversial
   2. The duty to provide to the court all material contradicting a controversial hypothesis
   3. The duty to make all material available to other experts in the case when advancing a controversial hypothesis
   4. The duty to take all reasonable steps to verify information provided
   5. The duty not to leave out relevant information
   6. The duty to take into account all material facts before them
   7. The duty to set out all material and literature relied upon in forming an opinion.

Moreover, the decision has key implications from a Fitness to Practise perspective. It is an example of the High Court subjecting the factual findings of an independent regulatory tribunal to intense scrutiny and open criticism. With apparent ease, the court stepped into the shoes of an independent panel to make fresh factual findings and to replace the decision on sanction.

Whilst regulatory bodies may now hesitate before instigating proceedings concerned with expert evidence, this is not the court’s intention. Rather, the judgment seeks rather to guide how such proceedings should be conducted. The decision lends support to the advice set out in Meadow v General Medical Council [2007] QB 462, namely that a panel “should fully understand and assess [the professional’s] conduct in the forensic context in which it arose… Not least… an appreciation of the isolation of an expert witness… in the alien confines of the witness box in an adversarial contest over which the judge and the lawyers hold the sway”. Professional panels must be properly equipped to consider unusual or complex issues, such as the provision of expert evidence in court. This may involve the reconstitution of a panel.

Grace Forbes