Expert witnesses must not act as advocates for the party instructing them

The Case

The Appellant was appealing her erasure from the register of dentists by the Professional Conduct Committee (PCC) of the General Dental Council (GDC). The main reason for the erasure, which prevents the Appellant from practicing dentistry in England and Wales, was the PCC’s finding that she had retrospectively made handwritten notes (known as “Brown Cards”) about patients, and then sought to persuade the PCC that they were made contemporaneously with the treatment.

The case was complicated by agents for the investigators who scanned in the patient notes inaccurately and then subsequently lost or destroyed the original documents.

The Expert Evidence

The GDC’s expert evidence was provided by Professor Morgenstein, a dental surgeon who is head of comprehensive dental care at Barts and the Royal London Dental School, and Julian Scott, a specialist in the propriety of dental practice on claiming fees from the NHS.

Professor Morganstein

Professor Morganstein advised that GDC standard 4.1 requires dentists to make and keep contemporaneous complete and accurate patient records, either by electronic record or on handwritten Brown Cards. The Professor sought to give his expert opinion on whether the Appellant’s Brown Cards were contemporaneous by basing his conclusions on the style and content of the records. However, he did not assert expertise in the authenticity of documents or that the Brown Cards were faked. Significantly, he suggested that the Brown Cards should be compared with comparable records for the Appellant’s other appointments during the time period under consideration.

Mr Scott

In assessing the Brown Cards and other records, Mr Scott asserted that a purpose of his review of the records was to establish the authenticity of the material. He considered that they did not appear to be contemporaneous records for the treatment provided on the date specified. He went through individual records and considered whether they were likely to be genuine or not.

Mr Scott also provided his view on whether the original Brown Cards had been included among the documents sent to investigators by the Appellant, based on the likelihood that they would have been scanned into the system had they been present and the apparent condition in a scanned image of a Brown Envelope which would have contained the Brown Cards.

Mr Scott withdrew his allegation in relation to backdating the Brown Cards during cross-examination.

The Judge’s statements

Mr Scott

The Judge criticised the reasons for Mr Scott’s opinion that the records were not contemporaneous, noting that “none has any logical merit”. He noted that Mr Scott is “not an expert in handwriting or the authenticity of documents generally or in identifying fraudulently backdated Brown Cards in the circumstances of this case”. Mr Scott did not visit the practice to assess comparable Brown Cards, and was not given the original Brown Cards because they were lost or destroyed, so he could not assess the colour of the ink or the age and state of the Envelopes and Cards.

The Judge also criticised Mr Scott for providing a view on whether the Brown Cards were among the records provided by the Appellant, when determining the facts was wholly the matter for the PCC and not him. The Judge noted that it was not within Mr Scott’s field of expertise or experience to advise on the likelihood or otherwise of scanning errors, something Mr Scott was prepared to do without any knowledge of how the scanning was done, by whom, under what protocol, and without seeing an index of the original documents. In the Judge’s view “it was inappropriate for Mr Scott to seek to give any evidence on what might have happened [with the scanning] and in doing so he stepped well over the boundary between being an independent expert and an advocate for the party instructing him.”

Professor Morganstein

The Judge noted that “Professor Morganstein was no better qualified to opine as a handwriting or document authenticity expert on fraudulently backdated notes on the facts of this case than Mr Scott.” These were matters of pure fact for the tribunal and an expert in handwriting and document authenticity. However, crucially, Professor Morganstein had specifically caveated his opinion on authenticity by advising the GDC to obtain comparable notes from the practice.  

Learning points:

• Expert witnesses should not provide expert advice on areas where they do not hold appropriate and up to date expertise and experience.
• Expert witnesses should be willing to attend physical sites and review other documents if this will clarify the facts and help them in reaching their conclusions.
• Expert witnesses should ensure that any expertise or experience they expect to rely upon is clearly set out in their CVs