Question

The case involves a client who is lightheaded and passing out and continues to drive. I met her face to face as an Expert Witness. Am I in a position to advise her not to drive officially or ask her to inform the DVLA even though she isn’t my patient? If she continues to drive despite this advice who should report her to the DVLA?

Can I mention her driving in the report as it is in the public interest that she should not drive?

Surprisingly no other specialist has advised her not to drive even though she has seen a neurologist and other doctors.

Answer

This is a difficult situation; it  throws up a potential challenge between your duty to the court as expert and duty to the claimant/defendant and yourself as a professional.

You should be able to satisfy both duties but the other point to bear in mind is the potential for causing significant distress to the claimant/defendant by making what would probably be an unexpected intervention in what is already likely to be a difficult situation.  Bearing that in mind it would be particularly important for you to communicate very clearly with the claimant/defendant and the solicitor to ensure that there have been no misunderstandings and that there are no surprises. That should go a long way towards ensuring that you discharge your safeguarding duty but don't damage your working relationship with either lay client or solicitor.

Board members from the medicolegal sectors could see some parallels, for example, very occasionally they unearth a serious diagnosis that had not previously been made and may require urgent treatment (for example a cancer detected on a scan that was instructed for other reasons). In that situation they will pass the result to the patient’s GP so that appropriate referrals can be made. If it is clearly unrelated to the injuries they are reporting on then they do not ask the solicitors before hand. If there is any overlap with the condition they are reporting on then they will discuss with the solicitors. The members concerned are lucky, as so far, their solicitors have not said no to a request from the expert to refer on through normal healthcare pathways for treatment of a serious condition. The medicolegal experts would not normally feel the need to ask the claimant’s consent to pass on their concerns to their GP, but if passing to any other non-medical authority then clearly they would need to do so. They do not have a duty to provide treatment to a medicolegal claimant. However they do have a duty to pass on any serious health or welfare concerns they have. If they did not do so, the GMC would quite rightly ask very searching questions about why they didn't.

It is not your duty to solve problems but it is suggested that it is your duty to pass on safeguarding concerns to the relevant people, be they GPs, social services or whoever else. Again, you should discuss this with your instructing solicitor but it seems the onus is on you rather than the solicitor to follow this through. Once you have raised your concerns with the person who is responsible for following it through then (is the Board's view) you have discharged your duty of care appropriately and in a way that would not compromise your position as an expert witness. To ask the solicitor to do this has been compared to a solicitor asking you to lodge your report with the court or deal with some other legal process.

One of the ways round this is to be open and honest during the instruction phase and make clear to the solicitor before accepting instructions that if safeguarding concerns are found on the assessment this will be notified to the appropriate agency.