Any views expressed in this article are those of the author and should not be interpreted as ICAEW views or guidance.

Background

X and Y have complex physical disabilities and also complex learning needs. Both of these children will need life-long care. Interim care orders were made by the local authority in 2018.

It was clear that there needed to be an expert medical assessment of X by a consultant paediatrician. On 17 July 2018 permission was granted to the parties jointly to instruct Dr Kathryn Ward. It was ordered that she should report by 26 October. This was then extended to 30 November 2018. It was also ordered that Dr Ward should also undertake a medical assessment on Y.

It appears that there were at least three stages required in the assessments:

• The examination of each of X and Y;

• A review of the lengthy medical records for each of them;

• The preparation and finalisation of a report.

The Expert

The Judge noted that Dr Ward had regularly been instructed as a medical expert witness in cases proceeding in the Family Court. She had had a distinguished career. As a consultant paediatrician, she was held in high regard.

The Court emphasised the particular sadness that she should face the criticism to which she was to be subject, at the end of such a distinguished career.

The Problem

Dr Ward was under severe domestic pressures, as her son had been involved in an accident. She made various commitments to undertake the assessments but she was not able to keep to the various timescales promised.

She was chased on several occasions by instructing solicitors; in early January 2019 she stated that she would produce the report which was due by 30 November 2018 but this did not happen. At that date she had neither examined X nor reviewed the medical records. It was clear that there was no real prospect of her meeting revised deadline dates which she herself set.

Finally, in some exasperation, the Court ordered Dr Ward to report by 20 February 2019 or to attend Court on 21 February 2019 to explain the delay. She neither reported nor was she able to attend on 21 February 2019.

The Court set out its view:

“Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met.”

The Findings of the Court

The parties came to the conclusion that in terms of both time and cost it would be appropriate for Dr Ward's instructions to be terminated and an alternative expert instructed. The Judge agreed.
The Judge concluded his finding with the following:

“I am deeply concerned about the way Dr Ward has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.”

Comment

The findings above related to a very highly regarded consultant who was undertaking work in connection with the Court of Protection. As business valuers we may all be grateful that we are not likely to be held to the same sort of account as that experienced by Dr Ward. The spotlight shone a very harsh light on her failings, as both X and Y were within the care of the Court of Protection.

There is however a deeper message: for any expert appointed by the Court there comes the power to give opinions which can influence judicial decisions. With power comes responsibility. Our normal professional obligations are magnified in consequence; there is a heightened duty in respect of all aspects of the role, including the requirements to deliver and to communicate fully with those instructing us. 

Andrew Strickland, Consultant, Scrutton Bland