In Bux v The General Medical Council [2021] EWHC 762 (Admin) (31 March 2021), the High Court of England and Wales approved the decision of the Medical Practitioners Tribunal to erase the applicant’s name from the medical register.
The applicant was a doctor who provided nearly 700 reports in claims of food poisoning against travel companies. The instructions in the case had come from a solicitor’s firm in which his wife was a salaried partner. He made diagnoses without proper evidence, and without identifying the existence of a range of opinions.
“… he produced expert medical reports on an industrial scale. Between 2016 and 2017 he wrote reports in 684 cases which generated a substantial part of his income. For each report he was paid £180 plus VAT. Therefore for those reports he received £123,120 plus VAT. These fees were paid into a service company, Bux Incorporated Ltd, of which he held 55% of the shares and his wife 45%.“
“The reports were written by the appellant, so far as I can tell, on a boilerplate basis. They were superficial, unanalytical, devoid of any differential diagnoses, and were invariably supportive of the claim.”
The court acknowledged that a conflict of interest might not of itself disqualify the applicant from being an expert witness, but that it was crucial that any such conflict be disclosed.
“I recapitulate:
- An actual conflict of interest will arise when an expert witness’s opinions are actually influenced, or are capable of being influenced, by his personal interests.
- A potential conflict of interest will arise where the facts are reasonably suggestive of such a conflict.
- An expert witness has a duty to disclose to those instructing him, and to the court, a potential conflict of interest, that is, all facts and matters which might reasonably suggest a conflict of interest.
- The duty of disclosure as provided for in the GMC Codes of Guidance does not differ from the legal duty of disclosure.
Failure to comply with the duty of disclosure is likely to have very serious consequences. In civil proceedings it is likely to lead to the expert witness being publicly criticised in a judgment, disqualified as a witness, and for his evidence to be ruled inadmissible or otherwise of no weight.
In regulatory proceedings the disciplinary tribunal will no doubt examine with great care what motivated the expert witness to conceal the conflict of interest. If it concludes that it was done for an improper motive, such as to obtain a financial advantage, then this may well lead to a finding of dishonesty, which in turn would inevitably lead to an order for erasure from the register.“
The doctor had also given an untruthful reply to a question, and the court rejected his defence that this was “a lapse or stupidity on my part“.
Full judgment here: https://www.bailii.org/ew/cases/EWHC/Admin/2021/762.html