If we feel as lawyers we sometimes have it tough, spare a thought for your expert witnesses: no longer protected by the cloak of immunity from suit, following Jones v Kaney ( UKSC 13), they also have to run the gauntlet against, at times, truculent regulators. The case of Kumar v General Medical Council ( EWCA Civ 1390), serves as a reminder of the high standards to which the professions are held.
At the Defendant’s trial, Dr Kumar had a rough ride. As described by Ouseley J (at ), “The multiplicity of deficiencies in his expertise, experience, preparation, diagnosis of IED, his obligations of disclosure to the court and in his understanding of the legal framework for diminished responsibility were laid bare.” The Defendant’s defences were rejected. The trial judge referred Dr Kumar to the GMC, which charged him with misconduct.
The Fitness to Practise Panel concluded that Dr Kumar had acted recklessly and was guilty of misconduct by inter alia failing to disclose his lack of previous experience in acting as an expert witness in homicide cases and in relation to the diagnosis of IED. A central issue in the appeal was whether Dr Kumar’s recklessness constituted misconduct.
Kumar is significant because it entrenches the principle that recklessness is sufficient to constitute serious misconduct. It was common ground in GMC v Meadow ( EWCA Civ 1390 at ) that serious professional misconduct might take the form, not only of acts of bad faith or other moral turpitude, but also of incompetence or negligence of a high degree. The Court of Appeal appeared to view this as settled law, though the basis for doing so was a Privy Council case (Preiss v General Dental Council  UKPC 36 at ).
In this case, Ouseley J upheld the Panel’s findings of recklessness, considering that Dr Kumar was aware of the risks that his lack of expertise and his non-disclosure of it created. Moreover, he would have been expected to have alerted the defence lawyers to the controversial nature of IED, to have had knowledge of how diminished responsibility operated as a defence, and to have drawn their attention clearly to the fact that he lacked relevant experience and important information.
It is right that we should expect that experts will not only act honestly, but that they will do so competently, not recklessly. The reasons for this are plain. There are many cases where the consequences of experts’ recklessness will place the public at risk, as Ouseley J put it (at ):
the risk which Dr Kumar created [was that] the defence was not withdrawn and was left to the jury, with the risk that Day would be wrongly convicted of manslaughter only. Till the last, Dr Kumar did not say that it could not be supported on his evidence.