The Working Group on Medical Experts in the Family Courts chaired by Mr Justice Williams has made 22 recommendations in its final report on how to tackle the shortage of available witnesses.
The report, which has been published today (5 November), identified four main factors as barriers or disincentives:
- Remuneration linked
- Court processes
- Lack of support and training
- Perceived criticism by lawyers, judiciary and press.
The principal recommendations include:
- Action by the Royal Colleges/Professional bodies to create online resources to support expert witness work and to increase awareness of existing training in the field provided by organisations such as the Academy of Experts and the Expert Witness Institute.
- Encouragement to the Royal Colleges/Professional bodies to engage with commissioners and or trusts to promote a more supportive environment to medical professionals/allied health professionals who wish to undertake expert witness work.
- The Royal Colleges/Professional bodies and the FJC to engage with NHS England and clinical commissioning groups to seek changes to contracting arrangements to enable healthcare professionals to undertake expert witness work within the parameters of their employment contracts.
- Amending the Legal Aid Agency’s guidance in respect of the granting of prior authority and payment to experts to simplify the process to enable an expert to render one invoice.
- Seeking changes to the rates of remuneration for certain experts and the prescribed number of hours in respect of some categories of assessments to more properly reflect the amount of work involved.
- Ensuring legal professionals including judiciary adhere to the provisions of FPR Part 25 in relation to expert instructions.
- Ensuring that the instruction to experts was more efficiently undertaken to ensure only the necessary paperwork was sent to the expert to consider and a unified point of contact to ensure more effective and efficient communication.
- Ensuring that experts were only required to give evidence where the court was satisfied an issue existed in relation to their report, to guarantee if their participation was required that it was fixed and not susceptible to last-minute change and to enable experts to attend by video conferencing app or video- link as the default position unless personal attendance was necessary.
- Ensuring that experts are treated appropriately during court hearings, within judgments and thereafter to support constructive engagement and feedback.
- Creating a sub-committee of the Family Justice Council to support and maintain the implementation of the recommendations by a programme of on-going liaison with other stakeholders such as the Royal Colleges, Professional bodies NHS commissioners, the Legal Aid Agency, training organisations and by over-seeing and supporting regional committees.
- Creating regional committees based on Family Division circuits and NHS regions to promote interdisciplinary cooperation, training and feedback.
- Create greater training opportunities for medical professionals/allied health professionals including mini pupillages with judges, cross-disciplinary training courses with medical and legal professionals, and mentoring, peer review and feedback opportunities.
- Promote greater awareness within legal professionals including by means of training, of best practice in relation to expert witnesses.
The President of the Family Division, Sir Andrew McFarlane, said: “In recent years it has become increasingly difficult for the Family Justice system to find experts who are willing to give evidence in Family Court proceedings. The shortage has not only been of clinical experts but also allied health professionals and independent social workers.
“Expert evidence is often necessary in order to decide cases justly and the reduction in available experts therefore presents a serious problem. In autumn 2018 I asked Mr Justice David Williams to convene a Working Group drawn from the legal and health professions to investigate the problem and to suggest solutions.”
Describing the report as "a most thorough piece of work", the President added: “Helpfully the working group discerned a silver lining in the COVID-19 cloud in that remote hearings demonstrated real advantages in making attendance at court hearings less disruptive of clinical practice and also in the convening of multi-disciplinary meetings.
“The work of the Group has already led to changes in the Legal Aid Agency processes that will improve witness participation. The Family Justice Council will take many of the recommendations forward, encouraging health and other professionals to put their expertise to use in the family courts.”
Sir Andrew added: “It is my hope that a reinvigorated expert witness workforce will enable the Family Court to continue to deliver the best outcomes for children, young people and families. Mr Justice Williams and I will be monitoring the implementation these recommendations over the next 12 months to make sure we retain the quality and quantity of experts needed.”