EWJ FEB 59 2025 web - Flipbook - Page 73
Criminal Procedure Rules Part 19 and the accompanying practice direction. This mainly covers: the
expert’s duty to the court; criminal cases being dealt
with justly; providing independent, objective and impartial opinions; only providing opinion on areas
within their expertise; clearly distinguishing which of
their evidence is of fact and which is of opinion; responding to reasonable timeframe requests; and
maintaining expert credibility (Criminal Procedure
Rules, 2023; FFLM, 2023).
is a reasonable and responsible standard of care in the
custody setting. Further studies in the clinical field and
formal expert witness training is also expected, to be
considered a liability expert, as well as maintenance of
continuing professional development. All the aforementioned abilities of collating, considering and
analysing information and evidence to create a robust
opinion remains crucial for this role.
Sound knowledge of, and an ability to apply, the legal
test for liability is integral, as well as a thorough
understanding of the Civil Procedure Rules part 35
(Eyre and Alexander, 2015; Ministry of Justice, 2021)
Expert evidence of opinion – criminal law
The expert witness CHCP can be requested to
provide expert opinion on various aspects of medico
legal care that has the potential to support or refute
the prosecution in a criminal case. This expert opinion can be provided regarding a detainee whom they
have assessed in custody, or as independent expert
testimony without any prior involvement with the
accused. This could include:
➢ To comment on the significance or causation of
injuries.
➢ To comment on medical components of the
procedure used to obtain blood samples under the
Road Traffic Act for the purpose of testing for levels of
alcohol or drugs in the detained person.
➢ To comment on medical reasons given for failing to
provide blood samples under the Road Traffic Act.
➢ Scientific medical opinion in relation to any of the
forensic samples they obtain and exhibit.
➢ To comment on a detained person’s fitness to
interview, considering mental health, intoxicants,
mental capacity and any other vulnerabilities.
➢ To give an opinion on the detained person’s
physical or mental health at the time of assessment in
custody.
The Independent Office for Police Conduct (IOPC)
sometimes request professional commentary from senior custody clinicians when conducting formal investigations concerning the care of a detainee in police
custody. A CHCP formally trained as an expert witness, within liability, could be viewed as beneficial for
clinical accuracy within investigations like these, which
are, almost always, investigated by lay people with no
previous clinical knowledge. As a proportion of these
cases have the potential to become criminal cases,
where the stakes can be so high, it is of the utmost importance that the individual, the patient, and the organisation are provided with clinically accurate and
expert opinion.
Expert evidence to explain technical subjects or
meanings
CHCPs are regularly requested at both Criminal and
Civil proceedings to assist the Court in understanding
technicalities, relevance and the meaning of clinical
presentation and jargon. This evidence is often presented alongside the provision of evidence of fact or
evidence of opinion.
Conclusion
There is, as of now, an unprecedentedly high
proportion of nurses and paramedics working as
CHCPs within Custody. To juxtapose this there are
now fewer forensic healthcare expert witnesses than
ever before, owing to the lessening numbers of FMEs
working in the custody setting as it becomes, largely, a
nurse-led service. This dearth of expert witnesses has
a negative impact upon the criminal justice system at
all levels. It is clear there is now a significant requirement to provide highly specialised education and
training opportunities for CHCPs to attain expert witness status. Furthermore, in order for CHCPs to provide credible expert evidence, there should also be the
provision of formal expert witness training and
education for this professional group.
For a CHCP to provide this type of expert evidence,
the level of knowledge and experience expected is of
a higher standard, which would involve further studies within their specific field of forensic expertise. The
CHCP needs to have the ability to collate information,
consider different types of evidence, critically analyse
and create a robust opinion; in order to provide a
credible expert witness report and provide oral expert evidence on the court stand. Formal expert witness training is required, and should be regularly
updated and appraised (FFLM, 2023).
The CHCP may be competent in all clinical areas
within custody, however they may not necessarily be
expert in all these areas. It is up to the CHCP to selfcertify what area or areas they consider to be expert in
when providing opinion, and defer their opinion
where they consider it to be outside their expertise.
Expert evidence of opinion – civil cases and liability
Additionally to the CHCP expert witness role in the
criminal justice system, much like in a hospital or community setting, there can be investigations into the
standards of care provided to a detained person in
custody. This could be a civil liability case brought
about by the custody patient or their relative.
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Liability expert witness work also requires a significant
level of experience and knowledge working as a
CHCP, to be considered credible to comment on what
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