What Counts as a Conflict of Interest? Medico-Legal Insights

In the world of medico-legal claims, the credibility of an expert witness is the foundation upon which every case is built. Whether acting in a personal injury claim or a complex clinical negligence suit, the requirement for an expert to be independent is absolute.

At the heart of this independence lies the avoidance of a conflict of interest. In this article, we explore the legal requirements for experts, the nuances of identifying potential conflicts, and the practical steps that both experts and legal teams must take to safeguard the integrity of the litigation process.

The Requirement for Independence

The duty of an expert is clearly defined within the English justice system. Long before the introduction of the Civil Procedure Rules (CPR) in 1999, the courts maintained that an expert’s primary responsibility is to provide an unbiased, objective opinion.

As noted in Paragraph 11 of the Guidance for the Instruction of Experts, experts must provide opinions that are independent, regardless of the party that instructs or pays them. This independence is not merely a formality; it is a clinical and legal necessity. If an expert is perceived to have a conflict of interest, their evidence can be fatally damaged, leading to severe consequences for the claimant and the instructing solicitor.

Learning from the Courts: Case Law and Precedent

The danger of failing to disclose a conflict is vividly illustrated in the case of EXP v Barker [2015] EWHC 38. In this instance, a medical expert failed to disclose during the initial stages of the claim that he had a long-standing professional relationship with the party for whom he was testifying.

It transpired during cross-examination that the expert had worked with the party for many years and even regarded that individual as someone who had "guided and inspired" his own clinical practice. The court deprecated the expert, and his credibility was destroyed. This case serves as a stark reminder: even if an expert believes they can remain objective, the appearance of a loss of independence is enough to compromise the entire case.

More recently, the Court of Appeal considered the issue in Secretariat v A Company [2021] EWCA Civ 6. This case involved a firm providing expert services to opposing sides in two closely related arbitrations. The court granted an injunction to prevent the conflict, establishing that the duty to avoid conflicts of interest often extends beyond the individual expert to the entire corporate group or firm.

What Counts as a Conflict of Interest?

A conflict of interest in a care needs assessment or medical report can arise in several ways. For the educational benefit of our readers, we categorise these into three primary areas:

1. Professional and Personal Relationships: In the relatively small community of specialist medicine and nursing, experts often have connections to the clinicians or Trusts involved in a claim. A conflict may arise if:

• The expert is a current or recent employee of the defendant Trust.

• The expert has a personal friendship or a mentor-mentee relationship with a clinician whose conduct is under scrutiny.

• The expert has previously treated the claimant in a clinical capacity.

2. Financial and Commercial Interests: Financial independence is a cornerstone of expert evidence. Conflicts occur when:

• An expert’s fee is contingent on the outcome of the case (a practice strictly prohibited in the UK).

• An expert receives such a significant portion of their income from a single firm of solicitors that their impartiality could be questioned.

• The expert has a commercial interest in a care agency or equipment provider they are recommending within their report.

3. Concurrent Instructions: As seen in the Secretariat case, an expert (or their firm) cannot act for and against the same client in related matters simultaneously. This "dual role" creates an "all-pervasive" conflict where the expert might find themselves supporting opposing positions on substantially similar issues.

Best Practice: The Path to Disclosure

The key to managing potential conflicts is prompt and full disclosure. It is better to provide the facts that could be argued as a conflict and explain why they do not impact impartiality, rather than to leave them to be discovered during cross-examination.

At the Point of Instruction:

Ideally, a conflict check should be performed the moment an expert is approached. At Apex Experts, our nurse consultants are trained to review the parties involved immediately. The standard direction in clinical negligence claims requires experts to provide a CV that includes details of any activity which might raise a possible conflict of interest.

Ongoing Vigilance:

Sometimes, a conflict only becomes apparent later in the process - perhaps when the full medical records are disclosed, revealing the name of a former colleague or a past clinical interaction. In these instances, the expert must notify the instructing legal team immediately.

Clear Terms of Engagement:

Every instruction should be underpinned by clear terms that address conflicts of interest. The expert should confirm in writing that they have performed a conflict check and that they are not conflicted to act as an independent witness.

The Role of Apex Experts

At Apex Experts, we recognise that the appearance of a conflict is just as damaging as an actual one. Every care needs assessment report we produce is subject to a rigorous internal quality assurance process. We ensure that:

• The CV is transparent: Any past employment or activity that could be perceived as a conflict is clearly documented.

• The Declaration is robust: Every report includes a signed Statement of Truth and an expert declaration that complies with Part 35 of the Civil Procedure Rules.

• Independence is prioritised: Our nurse consultants maintain a clinical distance, ensuring their recommendations for future care are based solely on the evidence and the claimant's functional needs.

Final Thoughts for Legal Professionals

When instructing an expert witness, the goal is to secure evidence that can withstand the highest level of scrutiny. A "tainted" expert is a liability that no legal team can afford.

By understanding the nature of conflicts - from professional ties to financial interests - and ensuring that your experts are diligent in their disclosures, you protect the integrity of your client's claim. Transparency is not just an ethical requirement; it is a strategic necessity.