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73 Medico-Legal J. 1 (2005)

handle is hein.journals/medlgjr73 and id is 1 raw text is: Medico-Legal Journal (2005) Vol. 73 Part 1, 1-2 © Medico-Legal Society 2005 Editorial: Clinical Negligence and the Legal Services Commission Dr Martin A Mansell Assistant Editor The labourer is worthy of his hire. Herbert Getliffe, Barrister-at-Law, to exploited pupil, The Conscience of the Rich, C P Snow, 1958. Experts 'fees have risen faster than lawyers 'fees. The second quote comes from the recent consultation paper produced by the LSC on the Use of Experts and, as an aid to reasoned debate, I present my conclusions of a trawl through its 54 pages. Unsurprisingly, given its legal provenance, it is both turbid and torpid and, even after several readings, I am not sure if its conclusions are meant to apply to medical experts in clinical negligence cases. Put simply, it attempts to extrapolate experts' fees from criminal cases to civil work, in which the emphasis seems to be on forensic medical examiners, family law, child protection, interpreting and forensic scien- tific specialities. The medical heading refers specifically to police surgeons, pathologists, psychi- atrists, psychologists and paediatricians but the implication, I think, is that all of the medical special- ities which come under the watchful scrutiny of the lawyers in clinical negligence should also be included. The document has some of its origins in the recent scandals in Munchausen's Syndrome by Proxy cases and it gives due importance to the need for validation and accreditation of the medical expert, while accepting that this will be impossible to achieve, at least in the foreseeable future. I was reminded of the line in the Peter Sellers film I'm Alright Jack - It's not compulsory but you've got to do it. The work of the Council for the Registration of Forensic Practitioners (CRFP) is taken as the model for a comprehensive and trans- parent register which is expanding steadily into many of the forensic specialities, although this will be inappropriate for most medical experts. It contains the statement, curious to me, that: When the services of an expert are needed, the required level of expertise depends on the partic- ular circumstances of the case. Experts required in commission-funded cases are generally those with professional qualifications, e.g. doctors, account- ants and engineers. The opinions of the most highly specialised experts are needed only rarely. What is needed is an expert who is competent in their field and for the job in hand. This seems to be taking the principle of proportion- ality to the absurd; is now the degree of expert advice to be judged on the injury suffered by the patient, the severity of the negligent treatment or the amount of quantum? No bones are made about the primarily finance-led purpose of the document, although it is both disap- pointing and surprising that accurate figures are not available for the proportion of the £200 million yearly expenditure of the LSC which is related to experts' fees. They are forced back to the rather weak conclusion that about two thirds of their total expen- diture, some £130 million, seems about right. Not a very satisfactory basis for the cost reductions they would clearly like to see happen. The proposal is that civil experts' fees should be linked to those estab- lished for criminal work, although with slightly wider minimum and maximum levels. Most medical experts work within the BMA guidelines of £150-£190/hr, although some subspecialties with limited numbers of experts may charge significantly higher rates. In broad terms, the sort of funding proposed by the LSC, allowing for the different levels of expert witness that they recognise, repre- sents about a 50% reduction in the BMA recom- mended levels. If, indeed, the document does apply to experts in

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