Experts hit the headlines with Conflicts of Interest

In the last 24 hours, two cases have come to our attention where the importance of declaring a conflict of interest has been highlighted.

The first was in the case of Bux v The General Medical Council [2021] EWHC 762. This was an appeal heard in the High Court on the 24th March by Mr Justice Mostyn where Bux was appealing his removal from the GMC register. 

The Medical Practice Tribunal had "made findings of fact that the appellant had acted in a state of conflict of interest, dishonestly and for financial gain."

The reasons for this are listed as:

i) that the appellant acted in a state of conflict of interest by accepting instructions (through an agent, Medico Legal and Litigation Services Ltd ("MLLS")) to prepare medico-legal reports in respect of holiday sickness claims, from a firm of solicitors (AMS Solicitors Limited ("AMS")), in which his wife, Mrs Sehana Bux, was a salaried partner;

ii) that in one case he gave a deliberately false answer (in a reply endorsed with a statement of truth) to questions posed to him as an expert under CPR 35.6;

iii) that he made diagnoses without proper evidence, without identifying the existence of a range of opinions, and had in his reports failed to follow the requirements of CPR Part 35; and

iv) that he improperly performed a circumcision procedure in the community and in so doing failed to recognise or advise in terms of the risk of doing so.

Mr Justice Mostyn summarised:

"In my judgment the MPT was correct to reach the conclusion that it did. I reiterate: a conflict of interest will arise when an expert witness's opinions are actually influenced, or are capable of being influenced, by his personal interests...... In this case the MPT had abundant evidence which demonstrated the following facts:
i) As an expert witness the appellant owed to the court a duty of independence and objectivity.

ii) On the other hand, the defendant had a personal interest in keeping up to speed the lucrative throughput of medical reports the benefit from which accrued not only to himself but also to his wife. She was a co-shareholder in the company to which the proceeds of the work were paid, and was a partner in the firm of solicitors providing him with the work.

iii) In 2016 it was abundantly clear to the appellant that he had to disclose his marital relationship not only to the defendant's insurers but also to the court. This was clear to the appellant not only from the terms of the codes of guidance to which he was subject, but also as a result of the letter written in 2011 by the MDU. But he made no disclosure.

iv) The appellant had on 12 May 2017 signed replies to CPR 35.6 questions, endorsed with a statement of truth, which were completely false.

In such circumstances, in my judgment, it would have been perverse and wrong for the MPT to have decided anything other than that the appellant had an actual, serious, conflict of interest of the first type. I am satisfied, notwithstanding the presence of some linguistic confusion, that this is what the MPT decided."

The case and judgment is extremely interesting and I would encourage all members to take a look (see the link below).

This case once again highlights the risks if Experts do not follow the Rules and Regulations and particularly if they fail to disclose conflicts of interest.

The second has hit the headlines today. The Guardian reports that an expert witness to the Grenfell Tower public inquiry tasked with assessing how the council landlord handled fire risk is embroiled in conflict of interest claims after it emerged that his son now works for the council as its head of fire safety.

A spokesperson for the inquiry says that: “Colin Todd informed the inquiry of his son Keith Todd’s intention to take up employment with RBKC at an early stage. Keith Todd will not be involved in any way in advising RBKC regarding evidence it gives to the inquiry about the Grenfell Tower fire and … Colin and Keith Todd will not discuss in any way fire safety matters relating to RBKC.”

Whilst the conflict may have been disclosed and the conflict of interest started after his instruction, claims about the conflict of interest this will likely add controversy to the inquiry. It will be interesting to see how this plays out....