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dishonest
The Dishonest Expert – On the Risks of Being Found Inaccurate.
  • Sep 22, 2020
  • Latest Journal

The risks to an expert witness of being found to have produced an inaccurate report have been highlighted in the recent case of McLennan v General Medical Council [2020] CSIH 12. Dr McLennan, a consultant psychiatrist, was struck off by the General Medical Council (GMC) after a finding that she had been dishonest in compiling a medico-legal report that a secret recording revealed was inaccurate. Dr McLennan’s appeal against the GMC was unsuccessful by a 2-to-1 majority. The judgment offers some illuminating pointers for expert witnesses about good practice, the standard experts are held to and how certain defences may be viewed were the expert’s evidence shown to be inaccurate.

Background.
Dr McLennan worked in an NHS hospital and also undertook private medico-legal work, preparing over 160 reports in 2014. She was instructed to assess Mr A, who was bringing a claim in the Employment Tribunal for disability discrimination stemming from his depression. Dr McLellan assessed Mr A on 19 July 2014 for 1 hour and 48 minutes, producing a report on 18 August 2014 in which she stated that she did not think Mr A was depressed. Dr McLellan’s report was detailed and contained many direct quotations from Mr A. She wrote that Mr A was irritable in the assessment, that he swore freely and that his account of himself was inconsistent and ‘tinged with mendacity’.

At the hearing before the Employment Tribunal, Mr A stated that he had covertly recorded his assessment by Dr McLellan, and he lodged a transcript of the recording with the Tribunal. The transcript revealed inconsistencies between what Mr A had told Dr McLellan and what was in her expert report. The transcript also showed that Mr A had not sworn during the assessment. The Tribunal declined to listen to the recording and did not regard the transcript as authentic. Accordingly, the Tribunal found that Mr A was not disabled within the meaning of the Equality Act 2010 and that his claim failed.

GMC Hearing.
Mr A then complained to the GMC who, after some initial unwillingness, decided to investigate. A hearing – lasting 26 days over 12 months – commenced in March 2018 before the Medical Practitioners Tribunal (MPT), with the GMC having instructed its own experts to produce a transcript and analyse the recording made by Mr A.

Guided by this new expert evidence, the GMC alleged that there were 17 occasions in the report where Dr McLennan had attributed comments to Mr A that had not been made by him. The MPT held that 14 of the allegations were made out, where Dr McLennan had been inaccurate or dishonest in her report. The MPT rejected Dr McLellan’s evidence that her recollection might have been poor, the MPT having formed the view that bad memory would have made the report vaguer and would not account for the direct quotations from Mr A. Moreover, Dr McLellan’s notes were inadequate (they amounted to only three pages) and contained no words that accorded with the direct quotations that she attributed to Mr A.

This evidence was read alongside the testimony of Mr A (he presented as a calm and reliable witness before the MPT); GP records and correspondence with Mr A that pointed to the consistency of his symptoms; and admissions by Dr McLellan before the MPT that Mr A had said the opposite of what was in her report. Taken together, the MPT concluded that Dr McLellan was inaccurate in 11 occasions. Moreover, in a further three occasions, the MPT held that Dr McLellan had been dishonest, making statements of Mr A that she knew to be untrue and because she had taken a dislike to him. The MPT cited as evidence comments from Dr McLellan that Mr A’s language and demeanour made her feel uncomfortable, that she found him intimidating and that a professional with her level of experience (she qualified in medicine in 1984 and was made consultant in 1994) could not have made that many honest mistakes. Following these findings, Dr McLellan was erased from the Medical Register.

Appeal to the Court of Session.
Only the three dishonesty allegations were challenged by Dr McLellan on appeal to the Inner House of the Court of Session in Edinburgh. The grounds were numerous and included that the MPT had made errors in its reasoning and had wrongly concluded that Dr McLellan was dishonest when other explanations were available (e.g., honest mistake).

By a majority of 2-to-1, the Court rejected Dr McLellan’s appeal. It was held that the MPT had not made any error of law and had acted reasonably in coming to the conclusion that it did. Delivering the majority opinion, Lord Carloway also concurred with the MPT that it was difficult not to conclude that Dr McLellan, in attributing comments to Mr A that he had not said, was behaving dishonestly and that she knew what she put in the report was untrue.

Moreover, whilst the Court mused that it was perhaps speculative to find that Dr McLellan had composed an unfavourable report on Mr A simply because she disliked him, Lord Carloway observed that the additional details which Dr McLellan provided in her report – namely, the direct quotations of Mr A – gave it a ‘veneer of attention to detail’, thereby endowing it with a degree of professional competence and weight. Without this persuasiveness, the Employment Tribunal might not have placed much reliance on it.

In addition, the Court was highly critical of submissions advanced by Dr McLellan that false memory could have played a part in her report on Mr A. Whilst Dr McLellan had sought to advance this submission without any detailed reference to how memory worked, Lord Carloway nevertheless concluded that it would be

‘…extremely alarming to the legal system if false memory were to play a part in the work of medical professionals when producing reports upon examinations, even if composed three weeks later. The [MPT] did not consider that to be a possibility. They were correct to do so…’

Implications.
The minority judgment of the Court offers some help to Dr McLellan and is founded on the point that the MPT reached the conclusion of dishonesty too quickly and without recourse to a full understanding of the transcript of Mr A’s recording. Whether Dr McLellan wishes to appeal the matter further is, at the time of writing, unknown though perhaps unlikely given that she has now retired. In any case, the Court’s decision offers some illuminating pointers for expert witnesses.

The first concerns good practice. There has been some suggestion that recordings of medicolegal assessments may become more commonplace following the High Court’s recent decision in MacDonald v Burton [2020] EWHC 906 (QB). Regardless, expert witnesses need to be alive to the potential to have their views challenged by litigants who may make their own notes (or, indeed, surreptitious recordings). When the expert’s notes are inadequate or incomplete, and/or there is lengthy time between assessment and production of report, the risks of being found inaccurate are heightened.

Secondly, expert witnesses need to be attentive to the risk their experience and level of competence poses if deficiencies do emerge in expert reports. Dr McLellan’s seniority as consultant and her experience of doing a over 160 medicolegal reports per year only served as a disadvantage before the MPT, where it was held that a consultant of such seniority and experience could not have made as many mistakes as she did without some ulterior motive.

A final point about the defence Dr McLellan made before the MPT and Court of Session. Whilst the Court’s decision on this will not be binding, I would argue that its approach is nevertheless indicative of the consternation aroused by regulators and courts were an expert to argue that inaccuracies in their report arouse from false memory. In many circumstances, courts are willing to accept that memory is not always neutral or reliable. Yet Lord Carloway’s comments evidence an unwillingness on the part of judges to countenance that expert reports may be the product of infallible or false memories. To the judge, expert evidence must be objective and unmediated by any subjective qualities – whether that be a dislike of the litigant or false memory on the part of the expert.

Ryan Ross
Old Square Chambers.
rross@oldsquare.co.uk