A working group seeking solutions to the dearth of medical experts willing to work in the family courts has made 22 recommendations for change including a simpler process for payment and allowing courts work to be part of employment contracts.
Sir Andrew McFarlane, President of the Family Division, last year established the working group to identify the scale of medical expert witness shortages and seek possible solutions.
The group, chaired by Mr Justice Williams, has now issued its draft report for consultation ahead of a final report due next spring.
Its recommendations include that the medical royal colleges and the working group should engage with NHS England and clinical commissioning groups to seek changes to contracts so healthcare professionals can undertake expert witness work “within the parameters of their employment contracts”.
It also recommended amending the Legal Aid Agency’s guidance on the granting of prior authority and payments to experts to simplify the process.
These steps would enable an expert to render a single invoice for a case, while changes to pay rates for certain experts would “more properly reflect the amount of work involved”.
Working group members took evidence from 412 people in medical fields and 297 lawyers and found difficulties reported throughout the country in finding expert witnesses with a wide range of specialisms affected.
The main problem caused was caused delay, thought there were also concerns about the quality of some expert evidence “which appeared likely to be linked to the shortages”, the report said.
Delays could be particularly difficult in cases involving children aged under three, as it may have a direct detrimental impact on the success of future placement.
The working group found the main shortages identified were in: child and family psychiatrists and psychologists; paediatricians; radiologist and neuroradiologists; neurosurgeons; ophthalmologists; haematologists; neonatologists; geneticists.
Opinion among medical specialists showed that the pool of experts was shrinking and senior registrars or consultants were unwilling to take on the work.
The main factors in this were remuneration, the length and complexity of court processes, lack of support and training and perceived criticism by lawyers, judiciary and the press.
Lawyers identified the Legal Aid Agency prescribed rate as a more significant barrier than did the experts, “which suggests the lawyers lacked a full understanding of the extent of the barriers”, the report said.
It said the wide range of barriers identified “means that solutions will need to cover a wider range of areas than might initially have been thought and will require engagement at senior level with Department of Health and Ministry of Justice as well as the NHS.”
While the range and nature of the disincentives “might seem to indicate a gloomy outlook” the working group felt some court process-related factors ought to be capable of short-term reform, while factors that needed longer-term changes should be resolvable as these were “largely within the gift of the medical and legal professions”.
“The working group are optimistic that even some of these changes are within reach given the compelling evidence and the enthusiasm of the agents of change,” the report said.