In a recent case1, the court refused a party permission to rely on expert evidence. One reason was procedural but the other was because the ‘expert’ lacked expertise and his report lacked scientific rigour. If you hold yourself out to be an expert, you need to ensure you have the right expertise.
The application was to the Court of Protection and therefore the Court of Protection Rules 2017 applied. However, those rules are, at many points, similar to the Civil Procedure Rules 1998, which apply to injury and other claims.
The application concerned whether it was in the best interests of E, a person without capacity, to receive COVID-19 vaccinations. One of the parties applied to rely on evidence from a particular ‘expert’ regarding treatments that would be available to E should he contract COVID.
Who is an expert?
The definition of an expert in this context is: “a person who, by virtue of their relevant qualifications, experience, skill or knowledge, is able to express an opinion on any relevant matter of fact.” That expert has a duty to help the court on matters within his or her expertise.
This ‘expert’s’ qualification
The ‘expert’ had an interesting CV. He had practised as a GP for 10 years until 2007. He then undertook naturopathic training, became a Director of the World Academy for Anti-Aging Medicine and held pending patents for discoveries in non-surgical hair restoration and computerised breast thermal imaging. He was Medical and Research Director for Natural Dr Limited and Medical Director of HB Health Anti Aging Medicine. This doctor’s primary interest was in nutritional support of cancer patients and in “non-invasive methods for the restoration of cell health in general and in particular as this related to breast and prostate health”. He described himself as a leading expert in magnetic therapy and had published articles on the effectiveness of static magnets in healing various conditions. The only publication on his CV concerning COVID-19 was a YouTube video on Vitamin D and COVID-19.
The individual’s report (which he described as a witness statement) described his experience of treating COVID patients with vitamins, resulting in uniform improvement within five days. It also referred to a review paper he had written which had not been published in any journal, medical or scientific or otherwise. In support of the claim, “It has become very clear in recent months that existing vaccines do not prevent illness, nor do they prevent transmission”, he cited two authorities. One was a news article for Israel National News about a television interview with a single medical practitioner. The other was an article for an online publication “set up due to a lack of alternative to the lying mainstream media”.
The court’s view
The court found four reasons why this individual’s evidence could not assist the court.
- His CV did not reveal a field of expertise which would enable him to assist the court. He lacked the relevant qualifications, experience, skill or knowledge to give an opinion with some measure of authority such that the court could rely on it. He had no specialisation in virology, epidemiology or any other relevant field of practice.
- While it was not for the judge to say whether his opinions were correct or not, his evidence had not been put forward in an objective, unbiased and fair manner. It was wholly one-sided rather than balanced. It was polemical rather than disinterested. There was no weighing of the evidence or hint that there might be a range of opinions. There was no contrary view that vaccination might be effective.
- An expert should use his or her particular knowledge and experience to analyse the relevant material and evidence. This report did not do so. It did not, for instance, examine any evidence in support of the national immunisation programme. This individual’s uncritical reliance on the articles for Israel National News and the online publication fell “far below the standard of analysis that the court is entitled to expect from an expert witness”.
- An expert should consider all the evidence and, where the opinion concerns an individual, his or her individual circumstances are relevant. There was a lack of specificity concerning E in the report and no indication that the ‘expert’ had seen any of the documents in this case.
The case is unusual in that the lack of relevant expertise was extreme. However, it illustrates the fact that an expert needs to demonstrate his or her qualifications, experience, skill and knowledge with the context of a recognised body of knowledge, subject to objective scrutiny and peer-review.
1 North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) (Rev1)  EWCOP 15