Acting As An Expert Witness - RCOT
Acting as anexpert witnessGuidance for occupational therapistsSecond EditionRoyal College of Occupational Therapists
About the publisherThe Royal College of Occupational Therapists is a wholly ownedsubsidiary of the British Association of Occupational Therapists(BAOT) and operates as a registered charity. It represents theprofession nationally and internationally, and contributes widelyto policy consultations throughout the UK. RCOT sets theprofessional and educational standards for occupational therapy,providing leadership, guidance and information relating to researchand development, education, practiceand lifelong learning. In addition,10 accredited specialist sections supportexpert clinical practice.www.rcot.co.uk1/18
Acting as an expert witnessGuidance for occupational therapistsSecond editionRoyal College of Occupational Therapists
This edition published in 2018by the Royal College of Occupational Therapists106–114 Borough High StreetLondon SE1 1LBwww.rcot.co.ukCopyright Royal College of Occupational Therapists 2018Author: Royal College of Occupational TherapistsWriters: Members of the Medico-legal Forum (MLF), Royal College of Occupational Therapists’Specialist Section – Independent PracticeAcknowledgements: With thanks to Colin Ettinger, Irwin Mitchell LLP; also to Ella Cornforth, JillKings and other Medico-legal Forum members for their help in updating this guideCategory: GuidanceDate for Review: August 2021Based on material originally published as Medico-Legal Forum Standards for practice for expertwitnesses. Copyright College of Occupational Therapists 2009. Previous edition published in2013. This edition supersedes the previous edition.Terms in the glossary are based on Civil Procedure Rules – glossary (Ministry of Justice 2017c).All rights reserved, including translation. No part of this publication may be reproduced, stored ina retrieval system or transmitted, by any form or means, electronic, mechanical, photocopying,recording, scanning or otherwise without the prior permission in writing of the Royal College ofOccupational Therapists, unless otherwise agreed or indicated. Copying is not permitted exceptfor personal and internal use, to the extent permitted by national copyright law, or under theterms of a licence issued by the relevant national reproduction rights organisation (such as theCopyrights Licensing Agency in the UK). Requests for permission for other kinds of copying, suchas copying for general distribution, for advertising or promotional purposes, for creating newcollective works, or for resale, should be addressed to the Publications Manager at the aboveaddress.Other enquiries about this document should be addressed to the Royal College of OccupationalTherapists’ Specialist Section – Independent Practice at the above address.British Library Cataloguing in Publication DataA catalogue record for this book is available from the British LibraryWhilst every effort has been made to ensure accuracy, the Royal College of OccupationalTherapists shall not be liable for any loss or damage either directly or indirectly resulting fromthe use of this publication.ISBN 978-1-905944-74-3Typeset by Servis Filmsetting Ltd, Stockport, CheshireDigitally printed on demand in Great Britain by the Lavenham Press, Suffolk
ContentsIntroduction and context iv1The role of an expert witness 11.1 Criminal vs civil law experts 12The role and function of an occupational therapy expert witness 42.1 How an occupational therapy expert witness is instructed 42.2 Upon formal instruction 52.3 Giving evidence in Court 53Being and staying competent 73.1 Credibility as an occupational therapy expert witness 73.2 Training to be an expert witness 83.3 Avoidance of conflict of interest 94Legal frameworks: rules and protocols 104.1 Civil Procedure Rules: Part 35 and Practice Direction 104.2 Guidance for the instruction of experts in civil claims 104.3 Pre-action protocol for personal injury claims 114.4 A guide to the conduct of cases involving serious injury 115Prevailing principles 135.1 Restitution 135.2 Reasonableness 135.3 Proportionality 13Appendix 1: Business considerations for independent expert witnesses 14Appendix 2: Preparing your cost budget 15Appendix 3: Preparing your expert report 16Glossary 18References and further reading 20Royal College of Occupational Therapists 2018 iii
Introduction and contextThis guidance has been produced for occupational therapists working as expertwitnesses and for occupational therapists who are considering undertaking this work.For the former group it will provide a guide against which they can measure theirexisting practice; for the latter group it will provide sufficient information to assist inmaking decisions to undertake this work.To note, throughout this guide the term occupational therapy expert witness refers tosomeone who: has trained and is registered with the Health and Care Professions Council (HCPC) asan occupational therapist within the United Kingdom (UK); and has been instructed to act as an expert witness.Civil Law is constantly being updated and differs across England and Wales, Scotlandand Northern Ireland. Readers are advised to refer to the relevant websites to keepabreast of such ps://www.justice-ni.gov.uk/ ivActing as an expert witness: guidance for occupational therapists
1The role of an expert witnessThe Civil Procedure Rules 35.2 (i) defines an expert as‘ a person who has been instructed to give or prepare expert evidence for the purposesof proceedings’.(Ministry of Justice rules/civil/rules/part35#IDAOKICCIn the context of litigation in the UK, an ‘expert’ is somebody who has appropriatequalifications, knowledge and experience to assist the process of litigation.The evidence of an expert must always be: impartial; objective; unbiased; and independent.In England and Wales,1 evidence may be given by way of providing a formal report andgiving oral evidence in Court for the purposes of assisting the Court to reach a decision.It is important to understand that it is the duty of any expert witness to remain entirelyobjective and to provide evidence for the benefit of the Court, and not to act asadvocate for either party.Expert witnesses have a recognised professional qualification and significant practiceexperience. Over the last 20 years or so, in addition to medical expert opinion,progressively more expert opinions have been sought from other health professionals.This has seen an increasing role for occupational therapy expert witnesses, who are wellplaced to determine the functional impact of an accident or injury and able to adviseabout the value of loss incurred.To note, it is important to understand that expert witnesses are very different fromordinary witnesses. Witnesses of fact or material witnesses are called ‘witnesses’specifically because they have had involvement in the situation that has given rise tolitigation. Witnesses of fact can be treating clinicians, family members, friends,by standers, etc.1.1 Criminal vs civil law expertsExpert witnesses are required in every area of legal proceedings and the type of expertwitness required is dependent upon the nature of the case. To illustrate:1 For Scotland and Northern Ireland, please refer to the instructing solicitor.Royal College of Occupational Therapists 2018 1
The role of an expert witness Where it is suspected that a crime has been committed, this case will be heard in a criminalCourt and an expert witness in advanced driving might be instructed to analyse skid marksand determine the speed of vehicles involved. When a person is injured through no fault of their own, due to an accident or medicalprocedure that has gone wrong, this matter will be dealt with in a civil Court. In the case ofan accident, e.g. a road traffic accident, there may also be a criminal case dealing with theaccident and a civil case dealing with liability and damages. If an individual is injured as a result of alleged negligence on the part of another person (thelegal terminology is a third party), then they may have a right of action against them fordamages (compensation) if they can prove this negligence.Civil cases involve the injured person bringing the claim against the person ororganisation that caused the injury. In the context of personal injury cases, this is likelyto arise in collisions on the road, or as a result of an accident at work. A claim could alsoresult from medical negligence, for example injury during birth or surgery.In respect of a civil case, there will be a determination of whether or not the third partyis at fault and then an assessment of the amount of damages.There are major differences between criminal law and civil law in the UK.Criminal lawCivil lawLegal actiontakenbetweenThe case is between the Statevs another party, such as aperson or other legal entity,e.g. a company.The case is between theClaimant, who is the injuredparty who has brought theaction, vs the Defendant,whom the Claimant isholding liable for the harmcaused and against whomthe action is brought.Burden ofproof‘Beyond reasonable doubt’has to be shown for asuccessful prosecution. Thismeans that a convictioncannot be obtained unlessthere is almost completecertainty about the verdict.‘The balance of probability’ isused, i.e. more likely thannot. The Court determineswhich option is consideredmost likely to have happenedor will occur.Within a civil Court system the Judge is required to make a decision regarding threepoints of process: Liability – A Court will have to determine whether or not the person or organisationblamed by the Claimant is actually at fault for the injuries and losses that haveoccurred as a result of the incident in question. 2Acting as an expert witness: guidance for occupational therapists
The role of an expert witness Causation – This is whether the action in question directly caused the loss claimed for,e.g. whether a particular action or circumstance led to a particular loss or disability. Ithas to be established that the injuries and any losses sustained were actually causedby the negligent act in question. Consideration may also need to be given to whetherthe person had a pre-existing condition which may have impacted on them in anyevent. Damages – The injured person is entitled to recover an amount for pain and sufferingand loss of amenity that they have endured in consequence of the negligent incident.They can also recover past expenses, future losses and expenses that will be required,provided of course that these are supported by the evidence. It is in this context thatthe evidence of occupational therapists is often crucial. Please note that damages areoften called quantum and both represent the compensation that an injured person willrecover.In virtually all serious personal injury cases, however the injuries are caused, the Courtwill require expert evidence in relation to the assessment of damages. It will be in thiscontext that the occupational therapist will be required.Royal College of Occupational Therapists 2018 3
2 T he role and function of anoccupational therapy expertwitnessOccupational therapists are now regularly instructed as expert witnesses in personalinjury and clinical negligence cases across the UK. Despite their small numbers as aprofession, the role of occupational therapists is substantial.2.1 How an occupational therapy expert witness isinstructedAn occupational therapy expert witness may act on behalf of: The injured party, who is referred to as ‘the Claimant’ (or ‘the Pursuer’ in Scotland). The Defence against whom the litigation is taken, e.g. a healthcare trust or motorinsurance company. Both parties as a single joint expert witness.An occupational therapy expert witness is instructed, usually by a solicitor, with a formalwritten letter of instruction (see Appendix 1). This letter will include details of theClaimant’s circumstances, with instructions being specific to each claimant’s case.Usually a solicitor will instruct an occupational therapy expert witness to provide areport to assist the Court by: Detailing a comprehensive assessment of the Claimant’s functional status; and Quantifying the needs arising from any temporary or permanent impairment offunction and consequent loss of independence.The loss incurred is then given a monetary value or ‘quantum’ to reflect the costs ofrehabilitation, care, equipment and services required by the Claimant to mitigate theirlosses.Occupational therapy expert witnesses have various areas of expertise, including: Care: mainly commenting on past and future care costs. Equipment: commenting on equipment and adaptation needs. Rehabilitation: commenting on past and future therapy needs. Vocational/functional capacity: commenting on work-related skills and abilities. Loss of service: commenting on ability/support requirements in order for the claimantto resume roles and responsibilities.or any combination of the above. 4Acting as an expert witness: guidance for occupational therapists
The role and function of an occupational therapy expert witness2.2 Upon formal instructionOn acceptance of formal instruction, an occupational therapy expert witness is requiredto give an estimate of their costs for the duration of the case via a cost budget (seeAppendix 2). Solicitors representing the parties have to put forward a budget which is anestimate of the costs that will be incurred. This will include the costs of all experts,including the occupational therapist.An expert witness must be prepared to meet deadlines imposed by the Courtthroughout the lifetime of each case in which they are instructed. In some cases thistime commitment may span over many years and the expert needs to be prepared tocommit to the longevity of the case. Once costs have been submitted and accepted bythe instructing solicitor and the instruction is agreed, the named occupational therapistwill be treated as an expert witness and will be subject to the obligations set out in theCivil Procedure Rules (CPR), as explained in this document.An occupational therapy expert witness will then be sent related and relevantdocumentation to read, usually referred to as a ‘bundle’. The bundle may includemedical notes and reports from other experts, and statements from witnesses of factand other professionals involved in the care of the Claimant.It is most common for expert witnesses to be asked to: Read the bundle and make note of salient issues. Visit the Claimant to undertake a comprehensive assessment of occupationalperformance. Provide a full and detailed report on the lifelong needs arising from the Claimant’sinjuries, cross-referencing other information provided in the bundle as required (seeAppendix 3).Following submission of this report, the expert witness may be asked to carry outfurther work, including: Revisiting the Claimant and providing an update report. Attending case conferences with the instructing party, either in person or bytelephone. The conference may also include Counsel, other medical experts and theclient. Taking part in a meeting between Claimant-instructed and Defendant-instructed careexperts, usually by telephone. The aim is to provide a joint statement highlightingareas of agreement and disagreement between the care experts. Responding formally to questions from either party concerning their report. Attending Court and giving oral evidence.2.3 Giving evidence in CourtGiving oral evidence in Court can be stressful and demanding. It requires substantialpreparation and specific training (which is detailed in section 3). Expert witnesses will besubjected to cross-examination, which seeks to challenge the expert’s credibility and thereasoning that underlies their assessment and recommendations.Royal College of Occupational Therapists 2018 5
The role and function of an occupational therapy expert witnessIn 2013, a further procedure was introduced whereby the experts for both the Claimantand the Defendant could be required to give evidence at the same time. They would becalled to the witness box together and the Judge would then ask them questions. By thistime their reports would have been disclosed and a joint report prepared. Once theJudge had finished asking questions, the Claimant’s and the Defendant’s legalrepresentatives would then be able to ask any follow-up questions. This is a procedureknown as ‘hot-tubbing’ but so far it has been rarely used. 6Acting as an expert witness: guidance for occupational therapists
3Being and staying competentOccupational therapists acting as expert witnesses are required to observe prevailingprofessional standards as set out by the Royal College of Occupational Therapists (RCOT)and the HCPC, including: Code of ethics and professional conduct (COT 2015) Professional standards for occupational therapy practice (COT 2017) Standards of conduct, performance and ethics (HCPC 2016) Standards of proficiency: occupational therapists (HCPC 2013).The single exception to this rule is that client confidentiality takes second place to theexpert witness’s overriding duty to provide client-related information to the Court, asdetailed in the Civil Procedure Rules Part 35 (see section 4 for more details).3.1 Credibility as an occupational therapy expert witnessWhen considering acting as an expert witness, it is fundamental that the occupationaltherapist understands that they will need to be seen as a highly experienced, credibleexpert who can demonstrate contemporary, evidence-based knowledge in their specificarea.Most occupational therapy expert witnesses will have at least eight years of experiencein their specialist area. However, it must be emphasised that most occupationaltherapists who take on expert witness work have significantly more experience thanthis. For instance, an occupational therapist being asked to advise on a spinal cord injuryshould have experience of working on such cases. They should have knowledgeregarding equipment relating to such individuals, for example up-to-date information onthe type of wheelchair to use and the type of vehicles that are available. They shouldalso be in a position to assess the level of support that such individuals need and to beable to base their opinion on a significant amount of experience.Experts will be instructed separately by the Claimant and the Defendant or a singleexpert may be jointly instructed by both parties. During the Court hearing the expertswill be challenged by the Claimant- and Defendant-instructed barristers.In addition to significant specialist knowledge and contemporary experience in theirspecialist area, an occupational therapist working as an expert witness needs to be ableto: Express themselves effectively both in written material and orally. Demonstrate a logical progression from assessment through needs identification tofinal recommendations. Robustly demonstrate and defend the reasoning behind their recommendations. Remain calm and clear in complex meetings and under cross-examination by anyparty.Royal College of Occupational Therapists 2018 7
Being and staying competentIt is essential that the occupational therapist understands the professional obligationsentailed in taking on the expert witness role. To present oneself as an expert witness,without either sufficient specialist expertise or experience in occupational therapy issuesor in the requirements of the litigation process, may jeopardise a case and result infinancial penalties and loss of reputation for the occupational therapist.3.2 Training to be an expert witnessWhile an occupational therapist with the appropriate level of skills and experience maybe an ‘expert’ in his or her field, they will require significant extra training prior toworking as an expert witness.It i
The role of an expert witness 2 Acting as an expert witness: guidance for occupational therapists Where it is suspected that a crime has been committed, this case will be heard in a criminal Court and an expert witness in advanced driving might be instructed to analyse skid marks and determine the speed of vehicles involved.
before acting as an expert witness. 7. This guideline does not apply to witnesses of facts. Who is an expert witness? 8. A RMP is qualified to testify as an expert witness if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.
With over 8 years’ experience acting as an expert witness, one of the most valuable pieces of advice I would pass on to new and even to experienced experts is that being an expert in your field is only the start of being an expert witness. The role and duties of an expert witness go well beyond just advising on an expertise. I would
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The credibility of an adverse witness, whether a lay witness or expert, can generally be impeached by demonstrating that: 1. The witness has committed an immoral, vicious or criminal act which affects the witness’ character and tends to show the witness to be unworthy of belief; 2. The witness has been convicted of a crime; 3.
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The Expert Witness Services references the Civil Procedure Rules (CPR) to ensure consistency between the Services and the CPR. It is recommended that the parties read the RICS practice statement and guidance notes Surveyor’s acting as expert witnesses, 4th edition and Independent expert determination, 1st edition.
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