An approach entirely contradictory to the duties and responsibilities of expert witnesses identified in The Ikarian Reefer

 

Commentary

This is a case in which the tribunal was critical of an expert witness. One criticism was that he did not expressly acknowledge the guidance provided in the Ikarian Reefer in his declaration – “a step taken by many experts who prepare reports for this Chamber”. I do not recall seeing a declaration that refers to the Ikarian Reefer per se, but the point is that the ‘extended’ declarations advocated by Bond Solon, The Academy of Experts and the Expert Witness Institute are based in part on the Ikarian Reefer.

I have often referred to having seen an expert report that gave no indication as to the name of the expert. I know that many people have found this hard to believe. Well, it has happened again.  

Learning points:

General

• The expert should provide clarity as to, and relevant details of, their instructions (‘the substance of all material instructions’).

• An expert should be able to explain why some time after their original report has been prepared, and in the absence of any further assessment of the subject, they have been instructed to provide a second report (‘the substance of all material instructions’).

• Assessments of non-English speaking patients facilitated by an interpreter pose specific communication challenges to all participants. There will be concern that important diagnostic and relational cues are lost because of the way original speech is rendered by language interpreters.

• Identify with clarity the language in which the subject completed any questionnaires.

• Where someone has assisted the subject in completing any questionnaires, the expert has to engage in detail with the extent to which the answers were the subject’s own, or a hybrid coupled with their assistant’s personal understanding of their circumstances, and the assistant’s understanding as to what the subject was endeavouring to say.

• Discounting test scores which do not accord with the expert’s expectation as to their likely outcome because of the appellant's limited English language skills but being content to rely upon others where conclusions are favourable to the subject's case, requires an explanation.

• 'Sources of Information' (or ‘Documents and materials’) should be accurate and complete, in particular as to the medical records considered.

• The expert’s name should not be missing from the report; an unintelligible signature is not sufficient.

• An expert who is a professor should indicate the institution at which the professorship is held or by which it is awarded.

• An expert who opines in general terms on facts outside their purported area of expertise must provide an explanation as to the foundations of their opinion.

Immigration and asylum

• Asylum and human rights claims are different matters.

• Expert or other evidence produced in asylum and immigration matters should not encroach on a tribunal's identification of whether a well-founded fear of persecution and/or the risk of a breach of protected rights under the Human Rights Act 1998 arise.

• A declaration is required, whether or not referring specifically to the Ikarian Reefer, to the effect that the expert has complied with its requirements as to expert evidence.

• An expert should be able to explain, if it be so, why they consider him/herself capable of presenting factual evidence to a tribunal on the provision of health care in a country in which they do not work.

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