There has been considerable interest in Mr Justice Collins' decision in Meadow v General Medical Council (GMC) delivered in February this year. The case concerned an appeal by Professor Sir Roy Meadow against the finding by the GMC's Fitness to Practice Panel that he was guilty of serious professional misconduct and should be removed from the medical register. The decision extended the immunity of witnesses from civil and criminal actions to disciplinary proceedings. Although decided in a medical context, it applies across all professions and so its effect will be far-reaching. The decision is subject to appeal, but its broad application will have an immediate impact on experts.

Public policy

Immunity from disciplinary proceedings was not an issue the court had previously dealt with and the Meadow decision is based on the public policy consideration that experts should be able to give honest evidence in good faith without the risk of facing disciplinary action. In Meadow's case, it was recognised by the panel that his mistake when using statistics as an expert paediatrician had been an honest one.

Mr Justice Collins expressed concern that disciplinary proceedings, because of honest mistakes, would have a damaging effect because this was as much a deterrent to evidence being given as civil or criminal proceedings would be and, in his view, probably more so, as the practitioner's livelihood can be at stake. In Meadow it was therefore stated witnesses should also be immune, but not absolutely, from disciplinary action. It was recognised that there is a public interest in ensuring that confidence in a profession is maintained; accordingly, judges remain able to refer an expert to their regulator. This step can be taken if the court considers the expert's conduct falls so far below what is expected that this is warranted. What cannot
now happen is that a regulator brings disciplinary proceedings against the expert, either on its own or as a result of a complaint.

Impact on experts

Meadow does not change an expert's duty to the court or the standard they should adhere to in preparing their report and giving evidence. The Ikarian Reefer principles still apply and, as Mr Justice Collins pointed out, an expert must give evidence honestly, in good faith and must not deliberately mislead the court.

The decision also does not remove the risk of an adverse costs order being made against an expert. In Phillips v Symes it was held that, for costs, an expert could be made party to the proceedings in which evidence was given. If an expert gives evidence recklessly and fails to abide by his duty to the court, he can be liable for the costs of those affected by his evidence.

The case clearly does have an impact in other ways. As with immunity from suit, dishonest behaviour is covered, as well as honest mistakes. Unless the judge refers the expert, there can be dishonest conduct without sanction. Witnesses can still be charged with perjury, which is a serious deterrent. This does not impact on the vast majority of experts who give honest evidence, but it might raise questions about maintaining public confidence.

A report cannot give rise to proceedings if it is prepared with "a view to its being used or in the knowledge that it will probably be used in evidence in court". The majority of cases settle and a point made in Meadow was that this might allow a poor expert to go undetected while their reports continue to be used. Mr Justice Collins thought it likely that lawyers would eventually stop instructing a poor calibre expert, which seems right. It is fair to say though, that an element of scrutiny has been removed. There is also some uncertainty about where the immunity stops, as it was said that the immunity does not apply when a report is prepared for some other purpose but is subsequently used in court proceedings.

The immunity does not extend to actions which help produce the expert's evidence. For example, an expert will be immune when reporting test results, but in theory the expert's competence in carrying out the tests could give rise to disciplinary proceedings.

There is a grey area where proceedings by regulators are not strictly disciplinary. Medical regulators, for example, have health panels which can take action if a practitioner's fitness to practise is impaired because of illness. If an issue comes before a regulator on health grounds because of an expert's evidence, these proceedings could now also be barred.

Possibility of referral

Meadow is likely to increase the judges' workload. It is for the judge alone to refer an expert to their regulator if it appears that their behaviour would warrant conditions preventing the expert from giving evidence in future or, in more extreme cases, that the expert should be removed from their professional register altogether. These are the types of decisions usually made by a disciplinary panel after hearing and considering the case against the practitioner.

In many cases it might be difficult for a judge to assess whether a referral is needed. Judges often have to hear complex competing evidence where careful consideration is required to decide which practitioner's evidence should be preferred. Post- Meadow, the judge should also consider whether, in giving evidence and in their report, the expert has seriously breached their professional standards.

This is likely to raise practical difficulties. A party may have to apply for a referral. The best time to do so would be after the evidence has been given and when the proceedings are still on foot. At the very least, the evidence will still be fresh for the judge. It is questionable how willing parties will be to do this, as this may be a serious distraction and costs would be incurred.

This is unlikely to be a straightforward application; the point is made in Meadow that the expert should be allowed to make representations, probably with legal advice. The same issues arise if the application is made after the hearing or on appeal. It seems more likely that the majority of referrals will only be made in situations where the judge clearly recognises that an expert is failing to meet their duty to the court, which would also breach professional standards.

Results awaited

The court has recognised, notably in the medical field, that regulators are better placed than judges to form a view on competence and fitness to practice. This may not sit comfortably with an immunity for witness evidence which allows the court alone to refer the expert to a regulator. Where should the balance be struck? The Court of Appeal will grapple with this, along with other issues.

The result will have to be awaited but this may not be a situation where the immunity is lost or, conversely, is upheld entirely. Instead, welcome guidance might be given about when the regulator can intervene without the court referring. For experts, regulators and lawyers alike, this will assist in clearing up the grey areas.

Len Murray is a member of Baker & McKenzie's public law group.