By Elizabeth Bowden, Barrister, College Chambers
My areas of practice are family finances and civil litigation, which gives me a stepped-back view of what my colleagues in family children/public law are facing. If you are wondering why I am writing anything on this topic, that is perfectly reasonable. I recently recorded a podcast episode with a medical expert, Dr Louise Newbury, a consultant paediatrician and child abuse specialist and regional group member of the Committee on Experts in the Family Justice System.[1] Dr Newbury described working as a medical expert in the justice system. It was obvious that, from her perspective, the system does not work well for medical experts. I asked her if she could ask the Lady Chief Justice to do one thing to make the system better; what would that one thing be? Her view was that the clinical hub system being piloted by the Suspected Inflicted Head Injury Service (SIHIS) was that one thing. I am a very solution-orientated person, so this answer piqued my solution-finding interest. Was it really so simple?
Creation of the SIHIS Pilot
Six years ago, the President of the Family Division, the Rt Hon Sir Andrew McFarlane (PFD), expressed concern about a lack of experts. In 2019, the PFD established the Expert’s Group, chaired by Mr Justice David Williams. The Expert’s Group, which is part of the Family Justice Council (FJC), went out of its way to engage with experts and identified four key areas of concern: Poor remuneration, negative experience of court processes, lack of training and support in the role of being an expert, and the potential for adverse criticism in the Court’s judgment.
Six years later, the PFD, in a speech to the British Society of Paediatric Radiologists on 07 November 2024[2] set out how one of those concerns has been addressed, “every single Family judge has received training on how to treat an expert appropriately and fairly, and in particular, the difference between disagreement with a conclusion and ad hominem criticism of the one who gives that opinion”. It appears to me that the multi-discipline clinical hub system used in the SIHIS pilot will address the other three areas of concern.
Who by, and how the clinical hubs were designed is vague due to the lack of consultation, but I can safely surmise that the Department for Education (DfE), Department of Health and Social Care, Ministry for Justice, NHS, and the FJC all played a part. No group representing lawyers appears to have been part of the process (causing some consternation). The clinical hubs are comprised of experienced clinicians from different specialist disciplines, all working collaboratively. The clinical hubs are well-funded and have proper administrative support. The clinical hub will produce one uniform multi-discipline team (MDT) report. Professor Stavros Stivaros, speaking at the DfE SIHIS Pilot Information Session (25 July 2024)[3] described MDT reports as being the gold standard because (and I paraphrase) they produce the most reliable opinions. From an expert perspective, I can see that these clinical hubs could be the blueprint for getting the best medical evidence and the soundest opinions.
The lawyers were left out
Everyone agrees that in cases involving children, the priority is the safety of the child, quickly followed by fast resolution to preserve family relationships. The clinical hubs and their MDT reports, on the face of it, provide for that. What seems to be missing is any thought into how we incorporate the checks and balances of the legal process into the clinical hub process.
The lack of consultation with the legal profession caused much understandable anxiety for lawyers. At the FJC meeting on 22 July 2024, the DfE responded to enquiries about the lack of consultation, saying, “It is not a legal pilot. It is clinical. It does not change the legal process, impact on protections children are entitled to or replace Part 25 experts (sic). The pilot aims to provide an earlier assessment of children by more experienced senior clinicians at an initial stage when a child is flagged as suspected inflicted head injury/trauma by a trust rather than later in the process.” You can read more about that meeting on The Transparency Project’s website.[4]
From my somewhat more removed perspective, it seems obvious to me that it may be difficult to persuade a court that more expert evidence is ‘necessary’ when it has a report produced by more experienced senior clinicians in consultation with each other, assuming the clinical hub model lives up to the hype. The SIHIS report may not be intended to replace the procedural process for expert evidence, but the practical reality is that it will. The FLBA was quick to see the unintended consequences and is taking steps to address them.
Why the SIHIS pilot will work regardless of lawyers’ concerns
Despite the headline figures for the ‘star’ experts with eye-watering invoices, I am told the reality is that most expert witnesses, particularly medical experts, are not paid very well for their expert witness work. Most experts are expert witnesses in addition to their day job; it is an add-on to their professional career, not a standalone occupation. Dr Newbury told me that she worked on and wrote her reports herself and did so on evenings and weekends. It seems to be commonplace for experts to be doing their reports in a silo and with no admin support. That is not an attractive set-up.
Our justice system expects experts to attend Court regardless of their other clinical responsibilities. They are at the system’s beck and call. When we ask them to give oral evidence, they do so in our adversarial system. At least one party is trying to undermine their opinion, so someone is going to spend time questioning their qualifications and possibly their professionalism.
The delights of the adversarial system do not stop with cross-examination. The judge must undertake a critical analysis of the experts’ opinions and make a decision. That judicial decision must be backed up by reasons and put into a judgment. The judgment is often published and becomes part of case law. Expert witnesses run the very real risk of being subject to a published judicial comment, observation, or criticism that will be career-limiting or even career-ending. The PFD may say that the judges have been trained to address this concern. The reality is there is still the real potential for adverse criticism, and when a judge criticises an expert witness, it is far-reaching.
The recent decisions in Wilson v Ministry of Justice [2024] EWHC 2389 (KB) and LB Hammersmith v G & H [2024] EWHC 2200 are two examples of cases reported this year where I have no doubt the criticisms of the expert will have had an impact emotionally and financially. In LB Hammersmith v G & H, Mr Justice Keehan listed eight specific criticisms of the medical expert. This is not a 2024 case report phenomenon. In LCC v V & B [2023] EWFC 268 HHJ Booth’s criticism of the expert was robust.
Therefore, it is not surprising that there is a lack of expert witnesses. No reasonable person with a professional reputation and financial responsibilities would run the risk of having their main career torpedoed in a public judgment of their side hustle. The system must change to attract more medical professionals as expert witnesses. The piloted clinical hub system offers such change, including better working conditions and support. It seems obvious that the medical experts will make the pilot work.
Government departments, including the Ministry of Justice, will make it work, too. We all know that the decades of serious underfunding have led to a completely overloaded system. We also all know that no money is coming. The October 2024 budget made that plain. If the clinical hubs show the slightest hint of reducing delays and costs, those running the justice system will make sure they are rolled out. Why? It is easier to make efficiency savings than it is to get a bigger budget.
The judiciary is already on board, the PFD and Mr Justice Williams are publicly fans. Mr Justice Williams, who spoke on the legal background and context of the pilot at the SIHIS Pilot information session hosted by the DfE in July 2024[5] indicated that having an MDT report would improve the court process. His view was he would use the hub report to help determine the necessity test we are all so familiar with. The PFD’s support for the clinical hub system was clear in his 07 November 2024 speech.
Not everyone is so keen. There are a lot of practitioners who are rightly worried. Many indicating that the pilot was started without enough thought, Professor Jo Delahunty KC being one of them. John Vater KC, in his October 2024 article, sets his concerns about the SIHIS hub report being used to replace the Part 25 experts; he concludes that, in law, it cannot and that the idea is misconceived[6].
Why is the SIHIS the gateway to whole system change?
With apparent support from the medical profession, government departments and the judiciary, from my slightly removed viewpoint, the only result from the SIHIS pilot will be that it will be used to start system wide change.
The SIHIS pilot is driven by the DfE. Their goal for the pilot is to solve one of the drivers of delay in the justice system: multiple expert medical reports. Research tells us and the DfE that whole system change is needed to achieve that goal[7].
The clinical hub system was designed to reduce the number of reports. If courts then routinely allow additional Part 25 expert evidence, the MDT report is not reducing the number of expert reports. If the DfE is correct and the Part 25 process will remain as it is, the hub system could add a layer. Regardless of what the DfE says about Part 25, it can only achieve its goal of whole system change if the hub report does change the Part 25 process. There may be some tweaks and some learning, but to anyone looking in from the outside, the SIHIS pilot is the first step to whole system change. If you need further convincing, the DfE has already indicated that multi-discipline clinical hubs will increase in number; they will cover more areas and a wider range of patients.
One of the unintended consequences of more clinical hubs will be that fewer experts will be available to legal representatives. Professor Jo Delahunty KC has expressed her concerns that exposing the hub clinicians to cross-examination without proper expert witness training will put them off and reduce the pool.[8] Whatever the cause the result will be that a wider rollout of clinical hubs will mean there are fewer experts.
Is whole system change so bad?
The clinical hub system, in its current guise, is separate to and not a part of the court process. If we overlay the fact that rolling it out more widely will also mean fewer experts are available to challenge the clinical hub evidence, it is hard to see its benefits. On the other hand, the clinical hub system offers an opportunity for quicker and better medical evidence that will help the legal process to a faster conclusion. Practitioners can see the benefits of the hub system, but because there are no legal checks and balances, they can also see its dangers.
The idea of whole system change is not bad, but you can’t achieve whole system change unless you engage the whole system. It seems obvious to an outsider that you cannot improve the legal process through a system that does not include the legal process or the people who work in it.
The legal profession cannot stop the revolution, but we can steer it to maximise the benefits it offers. There are some easy and obvious steps that can be taken, e.g.
- A practice direction to set clear rules for how the clinical hubs communicate with the Court and lawyers and how the hub report fits into the legal process.
- Judicial and legal professionals input into the structure, content and timing of the uniform clinical hub report so it provides the information that lawyers and judges need, in the format the Court needs, and when the legal process needs it.
- Incorporating into the hub report process a means to challenge an MDT report / get a second opinion without the delay caused by multiple expert reports. For example after the initial report could a party request another hub peer review/cross-checks the anonymised findings to see if there is a disparity of opinion.
I am sure others will have better ideas than me. The point is if the legal profession is included in the pilot process, I have no doubt they will enhance and improve the clinical hub system, and we can achieve safe and considered whole system change.
It is wrong to give (intended or not) a government department with no responsibility for the legal process free rein to make whole system changes, especially when the impact on a child and family will last a lifetime. Equally, it would also be wrong for the legal profession to stand in the way of change when the change offers the opportunity for improvement for children and families. The only solution is to be part of the process.
By Elizabeth Bowden, Barrister, College Chambers
Other resources:
The Family Law Bar Association
[1] Nothing but the Truth with Elizabeth Bowden; S2 Ep1; Expert witnesses, what’s all that about?
[2] https://www.judiciary.uk/speech-by-the-pfd-suspected-physical-abuse-of-children-experts-in-the-family-court/
[3] https://www.youtube.com/watch?v=8_vOXXq0u-I
[4] Suspected Physical Abuse of Children – Experts in the Family Court. https://www.judiciary.uk/speech-by-the-pfd-suspected-physical-abuse-of-children-experts-in-the-family-court/
[5] https://www.youtube.com/watch?v=8_vOXXq0u-I
[6] The suspected inflicted head injury service: mixed messages and the price of justice [2024] Fam Law 1302
[7] Impact of court delays on children’s services Financial impact modelling support May 2022
[8] Speaking at an FLBA webinar in October 2024
