Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
At a recent conference Mr Steve Walker, who retired as Chief Executive of the NHS Litigation Authority (NHSLA) in August, observed that joint instruction of medical experts will become the norm in clinical negligence cases. Without a really radical shift in the environment in which clinical negligence claims proceed, it is hard to see how the scenario that he envisages will deliver justice at a lower cost. What the proposition ignores is that there is no level playing field in any sense with a clinical negligence case.
As claimant lawyers we have experience of the victims of medical accidents coming to us having gone through various stages of interaction with a healthcare provider. Some have no idea what happened and seek our assistance for answers, others have been through an internal complaints procedure. Some may have Serious Untoward Incident reports and medical records others have found that their questions have been met with a stone wall.
Rarely clients are referred to us by Patient Advisory Liaison Services or even contrite consultants. Unsurprisingly, it is those in this category of cases that tend to be easy to progress and resolve quickly in relation to issues of breach and causation. Early admissions passport to interim payments which can be used for rehabilitation. This in turn results in the fairest awards (with quick intervention for the claimant having maximised their chances of recovery) and relatively low legal fees because the whole preliminary stage of establishing breach of duty and causation is truncated.
In any case where breach of duty and causation are likely to be contested joint instruction raises the spectre of Human Rights Act claims and appeals against refusals to permit singly instructed experts.
Of course it is superficially attractive to think of this as a solution but in any complex claim where there is scope for debate the debate must almost by definition involve more than one expert. The alternative is that the expert will never be able to give their opinion but rather will only be able to recite all the known views and all of the literature and leave a Judge to work it out for themselves. Since an expert has to be permitted to have opinions to be of assistance to the Court it is illogical to believe that one person can usefully, and with integrity, present legitimate alternative interpretations of medical facts (that may also be contested) beyond their own.
Depriving a Claimant (or indeed a Defendant) of the opportunity for appropriate debate, where there is scope for genuine divergence of opinion, could not be achieved by more efficient means than foisting a single joint expert upon the parties.
The problem that government has to face that such decisions will not go unchallenged and what is intended as a costs saving exercise could become an expensive, complex and damaging experiment.
If the government really want to minimise the costs they must be more radical and revisit issues such as the duty of candour and the reversal of the burden of proof to achieve an even playing field. That would in turn create an environment that would minimise the risk of attack and challenge for the jointly appointed expert.
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