Concurrent Expert Evidence – the Role of the Judge
Our next meeting will review hot tubbing – the Australian practice of having groups of expert witnesses giving evidence together. More respectfully known as Judge-led Concurrent Examination, this process has made very slow progress in English courts since Sir Rupert Jackson’s lecture in January 2016. In July the Working Group led by Professor Rachael Mulheron published a report that was generally positive and in December Lord Woolman gave judgement in SSE Generation Ltd v Hochtief Solutions AG, a massive case in which the hot tub seems to have played a successful part. However there are a number of problems: quite apart from experts having to get used to having their feathers ruffled by needing to change the way in which they present their evidence, the process requires a great deal of work by the Judge before the trial. It may save time in court, but only at the expense of a lot more work being done by the Judge before the trial starts, at a time when judges are already being sorely pressed by the demands upon them, and too many cases still settle at the door of the court. It may shorten trials slightly, but only at the expense of much more preparation. We think the Forum should provide an opportunity for judges, counsel, solicitors and experts to identify the hurdles and means of resolving issues.
The Duty of Care to the Non-Patient
Since Tarasoff , Egdell and Osman we have known that doctors may acquire information of profound importance to other people and the conflicting obligations that this knowledge may create have been considered from time to time by the courts, as in Palmer v Tees HA where it was said that the doctor would have a duty to break confidence if the patient was a member of group of people identified as being at risk. Now the Court of Appeal has been confronted with the daughter of a man suffering from Huntington’s Disease who asserts that she should have been told so that she could terminate her pregnancy. The case raises fascinating issues of causation, since she will not know for many years whether her child will be afflicted.
Later this year the Forum will hold a meeting to debate whether the law is getting this balance right. It seems odd that the law should determine an issue which cries out for a consensus in society about the nature of the implied terms of confidentiality and how the interests of the patient are balanced with those of others who may be affected by information. Nor does it seem right that the GMC should take on the role of legislator. However as long as that is the way we do things in our society it seems helpful for the Forum to provide a place in which the issue can be debated.
Badly behaved patients in GP/ED
Many GPs and other front line staff are regularly confronted with abusive, multiple repeat attenders. People most of us would ordinarily ask to leave our premises and not to return if we met them in the course of delivering any other service. How does the law and the GMC require the doctor to respond?
This issue raises a fascinating practical conundrum that also raises interesting issues about the nature of the NHS – why is that we cannot say “go away” having checked they are not bleeding to death? Any abusive patient who presented themselves to a private hospital would be asked to leave as promptly as if they had started to abuse the staff in a shop or a restaurant. What are the implied terms of the contract between the NHS and its patients? How have things changed as a result of GPs losing the unfettered right to remove patients from their lists? What practical steps can we take to improve matters? We think this is a topic where the Forum could produce useful ideas and it will form the subject matter of our last meeting in 2017.