BEST PRACTICE GUIDELINES EXPERT WITNESSES

BEST PRACTICE GUIDELINES

FOR

EXPERT WITNESSES

Hong Kong Academy of Medicine

Professionalism and Ethics Committee

Task Force on Laws for Healthcare Practitioners

Foreword 3

About this document 4

I. When might you be asked to act as an expert witness? 5

II. What to find out when you receive an instruction? 6

III. Are you a suitable expert witness?

• Defining ‘experts’ 7

• Areas of expertise 7

• Conflict of interest 8

• Types of proceeding 8

• Commitment and fees 9

• Training 9

IV. What are your duties as an expert witness?

• Duty to the court 10

• Duty of confidentiality 11

V. Forming your expert opinion

• Sources of information 12

• Nature and scope of opinion 12

• Specific points to note 13

VI. Format of written report 16

VII. Attending case conference 18

VIII. Appearing in court / tribunal hearing 19

IX. Liabilities of expert witnesses 20

X. References 22

Appendices 24

This work is licensed under a Creative Commons Attribution 4.0 International Licence (https://

creativecommons.org/licenses/by/4.0/).

Please cite as: Task Force on Laws for Healthcare Practitioners, Professional and Ethics Committee,

Hong Kong Academy of Medicine. Best Practice Guidelines for Expert Witnesses. HKAM Press:

Hong Kong, 2023.

Published by Hong Kong Academy of Medicine Press

10/F, HKAM Jockey Club Building

99 Wong Chuk Hang Road, Aberdeen, Hong Kong

https://hkampress.org/

Table of Contents

FOREWORD

Expert witnesses serve important functions in the administration of justice. Their opinions have a significant

impact on the outcomes of proceedings and represent a respectable source of information to parties seeking

explanation, understanding and closure in a dispute. The integrity of expert witnesses, as well as the

substance and quality of their opinions, speak to the probity and standards of their respective disciplines

which are essential for gaining and maintaining the public’s trust.

The task of an expert witness requires a unique skillset and body of knowledge. In addition to the abilities

to analyse complex and detailed information in forming a trustworthy opinion and to communicate his or

her views effectively, an expert witness needs to be familiar with, and abide by, established legal principles

and professional standards which govern his or her work and conduct.

The present set of guidelines aims to assist and prepare medical doctors and dentists who are partaking,

or are considering to partake, in the role of an expert witness by setting out the relevant standards and

regulations and offering practical advice. It is intended to be a useful resource rather than a prescriptive or

an exhaustive code of practice, although expert witnesses are strongly advised to follow this guidance so as

to meet the expectations from the courts and other relevant decision-making bodies.

We hope that these Best Practice Guidelines will be helpful in your service to the communities and in

making your work as an expert witness a fulfilling professional experience.

Professor Gilberto Leung Dr. James Chiu

Co-Chairman Co-Chairman

Professionalism and Ethics Committee Professionalism and Ethics Committee

Hong Kong Academy of Medicine Hong Kong Academy of Medicine

Foreword

ABOUT THIS DOCUMENT

This document is issued by the Task Force on Laws for Healthcare Practitioners established under the

Professionalism and Ethics Committee of the Hong Kong Academy of Medicine with the following

membership:

Convenor

Dr. James Shing-ping Chiu (Co-Chairman, Professionalism and Ethics Committee and Director, Training

Course for Expert Witnesses, Hong Kong Academy of Medicine)

Members (in alphabetical order)

Dr. Ping-tak Chan (The Hong Kong College of Orthopaedic Surgeons)

Dr. Wing-kit Choi (Hong Kong College of Psychiatrists)

Dr. Calvin Yeow-kuan Chong (Hong Kong College of Pathologists)

Dr. Thomas Man-chi Dao (Hong Kong College of Family Physicians)

Dr. Yolanda Yee-hung Law (The College of Dental Surgeons of Hong Kong)

Dr. Chi-hang Ng (Hong Kong College of Paediatricians)

Dr. Barbara Sau-man Tam (College of Ophthalmologists of Hong Kong)

Prof. Sydney Chi-wai Tang (Hong Kong College of Physicians)

Dr. Steven Ho-shan Wong (Hong Kong College of Anaesthesiologists)

Prof. George Kwok-chu Wong (The College of Surgeons of Hong Kong)

Dr. Eddie Cheuk-pun Yuen (Hong Kong College of Emergency Medicine)

Contributor

Prof. Gilberto Ka-kit Leung (President, Hong Kong Academy of Medicine and Co-Chairman, Professionalism

and Ethics Committee)

Advisor

Mr. Woody Chang (Honorary Legal Advisor, Hong Kong Academy of Medicine)

The information contained within this document is for guidance only and not intended to offer legal advice.

It is developed from the perspectives of professionalism and ethics, on the basis of which medical and

dental practitioners should exercise their professional judgement, with regard to all clinical and other

circumstances. Colleagues are reminded to keep up-to-date with new developments in laws and regulations

as well as healthcare science.

About this document

1 Lawyers, acting on the behalf of healthcare

practitioners, healthcare facilities, employers,

the Police, the judiciary, regulatory bodies,

medical defence organisations, insurance

companies as well as patients or their family

members, may ask you to assist in proceedings

involving, for example, the Coroner’s Court,

civil court, criminal court, family court, and /

or professional tribunal.

2 You may be instructed to act as a professional

witness (also known as ‘witness of fact’),

being someone who has had clinical

involvement with the patient concerned.

This is often a requirement that you need

to comply with. You would be expected to

provide a factual account based on your

personal knowledge and records of the case

(e.g., clinical findings, test results, actions

taken), and you are not required to offer an

opinion on whether, for example, the clinical

management of the patient was reasonable

or up to standard.

3 You may be instructed to act as an expert

witness, in which case you may opt to accept

or decline the instruction. You would be asked

to provide an opinion about a person, who is

not your patient, on particular issues based on

your expert knowledge, experience, and the

facts of the case (which could be in written

form, or according to your own examination of

the person). The following sections will focus

on expert witnesses.

I. When might you be asked to act as an expert witness?

I. When might you be asked

to act as an expert witness?

4 There are certain facts that you need to

ascertain once you receive an instruction as

they would determine your suitability as an

expert witness for the particular case. If in

doubt, clarify with the person who instructs

you (e.g. the lawyer, the Secretary of a

disciplinary body or a party to the dispute)

before you decide whether to accept the

instruction, especially if you are not an

experienced expert witness. (Box 1)

II. What to find out when you receive an instruction?

Box 1: Things to find out about an instruction

• What is the nature of the case?

• What issues are you expected to address?

• Who are the parties involved? Who is instructing you?

• Is there any potential conflict of interest?

• Which kind of proceedings is involved?

• Are you acting as a single expert or one of the joint experts?

• Are you expected to examine the patient?

• Are you expected to attend court / hearing?

II. What to find out when

you receive an instruction?

Defining ‘experts’

5 The term “expert” is not defined in law, and

there is no official list of medical or dental

expert witnesses in Hong Kong. The Hong

Kong Academy of Medicine (the Academy)

maintains a list of Fellows who are willing to

serve as expert witnesses in their respective

specialties. However, parties and their legal

advisers may freely engage any registered

doctor or dentist of their choice to be their

expert witness, whether or not the individual is

on the Academy’s list.

Areas of expertise

6 It is imperative that you have the expertise and

experience relevant to the issues raised in the

particular case.

Chiu JSP, Leung GK. Expert witnesses and area of expertise. Hong Kong Med J 2023;28(1):4-5.

7 Medicine and dentistry have evolved to

include many specialties and subspecialties,

each of which requires its practitioners’ years

of studying, training and practical experience

to attain expertise. The mere fact that you

possess the relevant professional qualifications

(e.g., Academy fellowship) might not suffice

for the purpose of acting as an expert witness

in a particular case. You must also possess

sound knowledge and experience about the

standard and practice in the particular field at

the time of the incident.

Ideally, you should

be practising in that field at the time or be able

to demonstrate understanding of the standards

applicable at the time.

8 You should be mindful of any limitations of

your areas of expertise and act within those

boundaries as a matter of duty to the court or

Box 2: Case study

A child presented with hip pain after a fall. Dr. A, a specialist in Family Medicine, failed to diagnose the child’s

hip fracture. The child subsequently developed osteonecrosis of the femoral head.

• It would be appropriate for an expert witness in Family Medicine (rather than an expert witness in

Orthopaedics) to comment on Dr. A’s standard of care in diagnosis and treatment.

• An expert witness in Orthopaedics may be required to provide an opinion on causation (i.e., whether Dr. A’s

breach of duty of care had caused the child’s osteonecrosis).

• It would be appropriate for an expert witness in Orthopaedics (rather than an expert witness in Family

Medicine) to comment on the patient’s long-term prognosis and future treatment (i.e., quantum).

III. Are you a suitable expert witness?

III

III. Are you a suitable expert witness?

to the tribunal. For expert reports on liability,

i.e., to comment on whether a doctor’s

management was up to reasonable standard,

the usual practice is to select an expert in the

same specialty / subspecialty as the doctor

concerned. For expert reports on quantum, the

appropriate specialty / subspecialty will largely

depend on the injuries suffered by the claimant

and his / her need for future treatment. If in

doubt, discuss with the person who instructs

you before accepting the instruction. (Box 2)

9 If you wish to comment on an issue but

are unsure whether you have the relevant

expertise, you should clarify this with the party

who instructs you and state the concern(s)

in your report. Where an issue falls outside

your areas of expertise, you should refrain

from commenting and suggest the party to

invite suitable expert(s) instead. Only in

exceptional circumstances and under some

specific conditions will the court consider

admitting witness reports from an expert not

of the same specialty / subspecialty as the

defendant. (Box 3)

Conflict of interest

10 Before accepting an instruction, you should

disclose any possible conflict of interest to

the person who instructs you, who will then

decide whether or not to engage you. Should

knowledge of a conflict of interest emerge

during the ensuing proceedings, you must

formally declare such knowledge to the people

instructing you, the other party, and the

court. Failure to do so may result in the court

dismissing your opinion and / or referring the

matter to the Medical / Dental Council for

disciplinary action against you.

11 Conflict of interest may arise in a variety of

circumstances, such as professional or personal

involvement with one of the people involved

in the case (e.g., your instructing party, the

opposite party, the patient concerned), or when

you have a personal interest in the outcome of

the case. Such involvement may be pecuniary

in nature or otherwise. If in doubt, you should

disclose.

12 The key principle is that you should have no

interest, and be seen to have no interest, in the

outcome of the case.

Types of proceeding

13 An incident may be handled by different official

bodies with different purposes and functions,

and they may call for different types of opinions.

You need to have a good understanding of the

roles of the proceedings involved and be able

to address issues emanating from them.

14 For example, a professional disciplinary inquiry

(e.g., by the Medical Council of Hong Kong

or the Dental Council of Hong Kong) may be

looking into a complaint about a practitioner’s

professional misconduct; the Coroner’s Court

would focus on the causes and circumstances of

Box 3: Case study

In an Australian case, the claimant suered hemiplegia following a neurosurgical procedure.

The defendant (a

neurosurgeon) raised an argument about the expertise of the claimant’s expert witness, who was a neurologist

not a neurosurgeon.

• The Court did not exclude the neurologist’s expert opinion and held that “the opinion expressed by (the

Neurologist expert) in the present case was clearly based upon his knowledge of, and his training, study

and experience in, those matters.”

• However, it was also held that “it might be the case that ultimately, the weight to be attached to (the

Neurologist’s) opinion was less than that to be attached to the opinion of a Neurosurgeon.”

• In other words, questions of admissibility must not be confused with questions of weight.

III. Are you a suitable expert witness?

Sandra Battersby v Allan [2017] NSWSC 1724

death and not liability; whereas civil litigation

may deal with a claim in negligence, in which

case the issues would be about liability and

/ or quantum (i.e., the amount of monetary

compensation). (See later sections)

Commitment and fees

15 The work of an expert witness can be time-

consuming and challenging. Be prepared

to read and analyse lengthy and detailed

documents and to be able to communicate your

views clearly and concisely to people without a

background in medicine or dentistry.

16 You may be required to provide a written

report, attend case conferences, conduct joint

clinical assessments, give oral testimony, and

be cross-examined in proceedings. You may be

acting as a single expert for one party, or as

one of the joint expert witnesses. Make sure

that you will have the time, and are prepared

to spend the time, throughout the proceeding,

and that you will be available to attend court /

tribunal hearings in person, before accepting

an instruction.

17 You should agree with the person who instructs

you on the timeframe and your fee at the outset

(e.g., hourly rate, estimated number of hours

required). Inform and discuss with the person

who instructs you early when you think you

will need more time.

18 Clarify with your employer if you need prior

approval for undertaking ‘outside work’.

Remuneration for expert witness work is

taxable.

Training

19 It is advisable for anyone taking up the role of an

expert witness to have undergone prior formal

training, such as the Academy’s “Training

Course for Expert Witnesses”.

Start with

simple cases and work closely with instructing

lawyers to gain experience and accumulate the

necessary skills.

III. Are you a suitable expert witness?

Hong Kong Academy of Medicine Training Course for Expert Witnesses.

20 Once you have accepted an instruction, you

must pay attention to and observe various

duties.

Duty to the court

21 It cannot be overemphasised that an expert

witness has an overriding duty to help the

court impartially and independently on

matters relevant to the expert’s area of

expertise.

This means you must act in an

honest, trustworthy, and impartial manner.

Your opinion must be unbiased and based

on ascertainable, objective evidence. You are

not an advocate for the party instructing or

paying you. You must make sure that any

report that you write, or evidence you give,

is accurate and not misleading. This means

you must take reasonable steps to check the

accuracy of any information you give, and

to make sure that you include all relevant

information.

(Box 4)

22 You would be expected to cooperate with

case management, meet timelines, and

attend case conferences and hearings. You

need to familiarise yourself with the Code

of Conduct for Expert Witnesses with regard

to the declaration of duty to the court,

verification of reports, and format of expert

reports. You should abide by any direction of

the court to:

(a) confer with any other experts;

(b) endeavour to reach agreement on material

matters for expert opinion; and

specifying matters agreed and matters

Box 4: Expert witnesses’ duties to the court

“Experts are instructed to assist the court by oering their expert opinion on areas which are within their

specialist experience and which are not matters of common knowledge. That expert opinion has to be based on

the objective evidence available to and ascertainable by them. The paramount duty of the expert is to the court,

not to his client who has engaged him and by whom he is to be paid. There is no doctor-patient relationship

between him and his client. He is not a mouthpiece for his client but must conduct a forensic examination and

critically weigh the objective facts before oering his opinion to the court...” (Bharwaney J, at para 25.)

IV. What are your duties as an expert witness?

Code of Conduct for Expert Witnesses. Cap. 4A The Rules of the High Court, Appendix D.

General Medical Council. Doctors giving evidence in court. Duties of all witnesses. Para 79

Zahid Anwar v Graceful Sound Limited HCPI 410/2008 & HCPI 370/2009

IV. What are your duties

as an expert witness?

not agreed and the reasons for any non-

agreement.

(Appendix I)

Duty of confidentiality

23 Your written report and communications

with the instructing party are subject to

legal privilege, which protects confidential

communications that have come into

existence for the dominant purpose of

use in connection with actual, pending or

contemplated legal proceedings. You must

not disclose such information to anyone

not involved in the proceedings without

permission (e.g., casual discussion with your

colleagues).

24 All reasonable steps must be taken to secure

the use, transmission and storage of such

information.

25 The principles of honesty, objectivity,

trustworthiness, and impartiality and the duty

of confidentiality shall apply to other relevant

proceedings (e.g., professional disciplinary

inquiry).

IV. What are your duties as an expert witness?

Note 4.

V. Forming your expert opinion

26 Since your duty is to assist the court or the

tribunal concerned, you must ensure that

any evidence and opinion you give is sound

and capable of standing up to scrutiny

by the court / tribunal and the opposite

party. The expectable standards of expert

evidence have also been set out in statutory

instrument

, case law

and guidelines

issued by professional bodies.

10,11,12

Sources of information

27 Your opinion should be based on

the materials provided to you by the

instructing party. Study them thoroughly

and carefully. Ask the instructing party

should you require further information or

clarification.

28 You may also refer to other materials (e.g.,

scientific literature, clinical guidelines) to

support your views. Cite them properly and

list them out in your report. Be prepared to

provide copies to the person who instructs you.

Make sure that such materials are relevant to

the issues addressed and applicable at the

time of the incident. (Box 5)

29 Note that documents referred to in your

expert evidence may need to be provided

to the opposite party at the same time as

the exchange of reports.

Nature and scope of opinion

30 Your opinion must be honestly held,

trustworthy, objective, and impartial. You

Note 4.

The Ikarian Reefer [1993] Lloyd’s Rep 68, at pages 81-82.

Academy of Medical Royal Colleges, Acting as an expert or professional witness — Guidance for healthcare professionals

(2019).

British Medical Association expert witness guidance (2007).

General Medical Council. Acting as a witness in legal proceedings (2013)

Box 5: Case study

You have been instructed to comment on a case concerning a complication arising from a laparoscopic

colectomy for colonic cancer performed in 2010. In respect to the standard of care of the operation:

• a journal article on the complication rates of laparoscopic colectomy published in 2005 would be relevant

and applicable; whereas

• an article on open colectomy or an article on a new technique in laparoscopic colectomy published in 2021

is not.

should take reasonable steps to check

that any statement you make is accurate.

Consider all available evidence, including

statements from the other parties. Do not

deliberately leave out relevant information.

Distinguish facts that you know to be true

from those which are assumed.

31 For any tests or examinations carried out

by you or by another person, you should

state the nature of the test / examination,

the diagnostic criteria used, and the ranges

of normal results.

32 Your opinion must be supported by

materials that you have been provided

with or referred to. State the facts, matters

and assumptions upon which your opinion

is based as well as their limitations, if

any. When addressing the questions of

fact and opinion, keep the two separate

and discrete. Do not speculate beyond

the facts if you believe that your report

may be incomplete or inaccurate without

some qualification (e.g., where there is

conflicting evidence).

33 If you consider your opinion is not a

concluded one because of insufficient

research or data or for any reason, it should

be stated as a provisional one. Where there is

a range of opinions, you should summarise

them and state the reasons for your own

view. Your opinion should be unbiased,

even if it may be used to diminish the merit

of your instructing party’s case. Always

remember that you are not an advocate for

the parties and that your overriding duty is

to the courts and tribunals.

34 Where a particular question or issue falls

outside your areas of expertise, say so in

your report.

35 You are entitled to change your opinion

later, for example, after exchange of

reports. However, any change of view on

a material matter must be communicated

(through legal representatives) to the other

party and to the court. Once your report

has been issued in its final form, it cannot

be amended.

Specific points to note

36 Your report should ideally be tailored to the

proceeding involved. For example:

37 Professional disciplinary inquiries

conducted by the Medical Council of

Hong Kong or the Dental Council of Hong

Kong focus on professional conduct. They

aim to uphold professional standards and

to protect the public. They do not award

compensation for losses or suffering that

had been caused. Your report should

Box 6: Meanings of ‘professional misconduct’

For medical doctors:

The term ‘misconduct in a professional respect’ means “conduct falling short of the standards expected among

registered medical practitioners. It includes not only conduct involving dishonesty or moral turpitude, but

also any act, whether by commission or omission, which has fallen below the standards of conduct which is

expected of members of the profession. It also includes any act which is reasonably regarded as disgraceful,

dishonourable or unethical by medical practitioners of good repute and competency.”

For dentists:

The Dentists Registration Ordinance (Chapter 156) states that ‘unprofessional conduct’ means “an act or

omission of a registered dentist which would be reasonably regarded as disgraceful or dishonourable by

registered dentists of good repute and competency.”

The Medical Council of Hong Kong, Code of Professional Conduct for the Guidance of Registered Medical Practitioners

(2022).

The Dental Council of Hong Kong, Code of Professional Discipline for the Guidance of Dental Practitioners in Hong Kong

(2019).

V. Forming your expert opinion

therefore address the issue of ‘professional

misconduct’. (Box 6)

38 Death inquests held by the Coroners’ Court

consider the causes and circumstances

of death. It does not aim at allocating

liabilities, metering out penalties, or

awarding compensation. Your report

should aim at assisting the court in

understanding the cause of death and

reaching a verdict, which could be death

by natural causes, occupational disease,

dependency on drugs / non-dependant

abuse of drugs, want of attention at birth,

suicide, attempted / self-induced abortion,

accident, misadventure (i.e., where an act

that is lawful but that has an unexpected

consequence has caused the death),

Coroner’s Court. Examples of findings which may be made by the Coroner or the Jury.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Bolitho v City and Hackney Health Authority [1996] 4 All ER 771

Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430

The Medical Council of Hong Kong, Newsletter Issue 22, December 2015.

Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909

lawful killing, unlawful killing, stillbirth,

and possibly an open verdict.

Note that

the evidence presented to the court may

be used in subsequent civil claims for

negligence.

39 A claim in negligence in the civil court

may consider whether the defendant

practitioner is liable in causing the

claimant’s injuries and what the amount

of compensation should be. Your report

on liability and causation should contain

facts and opinions to deal with the issues of

whether the defendant owed the claimant a

duty of care, what the standard of care was

at the time, and whether the defendant’s

care had fallen short of that standard and

had caused the claimant’s injuries; if your

Box 7: Standard of care and causation in medical negligence

Standard of care

• The legal standard of care in civil claims is not necessarily the same as the professional ethical standard

expected of medical doctors and dentists in their practice.

• For diagnosis and treatment, the legal standard of care is such that “a doctor is not guilty of negligence

if he has acted in accordance with a practice accepted as proper by a responsible body of medical men

skilled in that particular art”.

In other words, a doctor or dentist is not negligent if he / she is acting in

accordance with such a practice, even though there may be a body of medical opinion that takes a contrary

view. However, the professional opinion must be able to stand up to logical analysis by the Court.

• For informed consent, a doctor / dentist is under a duty to take reasonable care to ensure that the patient

is aware of any material risks involved in any recommended treatment, and of any reasonable alternative

or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a

reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor /

dentist is or should reasonably be aware that the particular patient would be likely to attach significance

to it. However, the doctor / dentist is entitled to withhold information as to a risk if he / she reasonably

considers that it is detrimental to the patient’s health or in circumstances of necessity.

18, 19

Causation

• Causation is a complex issue. In general, the causation requirement is satisfied if it can be shown that, on

the balance of probabilities, the patient would not have sustained his or her injuries but for the breach of

duty of care by the doctor / dentist concerned.

In other words, it has to be shown that it is more likely

than not (i.e., greater than a 50% chance) that the patient would not have suered the injury if the doctor /

dentist did not breach the duty of care.

V. Forming your expert opinion

report is on quantum, it should discuss the

nature and extent of the claimant’s injuries,

and the need for future medical treatment

(if any). (Box 7)

40 However, you must be mindful of the

distinction between question of law and

question of fact. Whether or not there is

professional misconduct or negligence is a

question of law for the court / tribunal, not

an expert witness, to decide. Your role is

to assist the court / tribunal to make that

decision. The person who instructs you

would advise you on how to address these

issues. Clarify with him / her if you have

any questions.

V. Forming your expert opinion

41 The quality of your written report, in

terms of its content, style of expression

and format of presentation, is important.

While there is no prescribed template,

your report should cover the following

matters:

• your qualifications and expertise

relevant to the particular case (including

practical experience);

• identity of the instructing party, date of

instruction, case number (if any);

• scope of the report (matters to be

investigated and issues to be addressed);

• information that forms the basis of your

opinion (a list of materials provided by

the instructing party and other materials

you have utilised);

• a summary of relevant facts of the case;

• your opinions on the issues raised,

including the facts, matters, reasons

and assumptions on which the opinions

are based;

• issues that fall outside your field of

expertise (and suggestions for inviting

other experts, if necessary);

• other issues that you wish to address

(e.g., new issues that you have

Box 8: Dos and Don’ts when drafting an expert report

Dos:

• properly formatted with relevant headings;

• set out in paragraphs of suitable length;

• number your paragraphs;

• written in clear and straightforward language;

• use simple terminology with a glossary for unusual medical terms;

• acronyms spelt out in full when used for the first time;

• opinion is clearly stated;

• use diagrams, imaging studies to illustrate relevant matters.

Don’ts:

• long paragraphs;

• overuse of medical jargons;

• convoluted sentences;

• jumping between issues;

• mixing facts with opinion;

• not a stand-alone report.

VI. Format of written report

VI. Format of

written report

identified);

• a summary of your opinions;

• a signed and dated Form of Declaration

(Appendix II);

• a signed and dated Statement of Truth

(Appendix III);

• appendices (your brief curriculum vitae,

references relied on etc.)

42 A good expert report should be easy to

understand for people without a medical /

dental background. (Box 8)

VI. Format of written report

43 The person who instructs you may wish

to meet with you to discuss your report,

or you may be requested to attend

a case conference together with the

expert witness, instructing lawyer(s)

and relevant person(s) of the opposite

party.

44 Make sure that you are apprised of

your own report, the materials that

you use to form your opinion, and the

report and the materials from the other

party, if available, before attending the

meeting.

45 These meetings provide you with an

opportunity to explain your opinion,

highlight its strengths and weaknesses,

identifies areas of disagreement, areas

of agreement with other experts, and

any further evidence which may assist.

You may be asked to prepare a joint

statement with the opposite party’s

expert to set out the areas of agreement

and disagreement (with reasons), and

the aim is to assist the lawyers, and

ultimately the court or tribunal. It is

not a confrontational exercise to argue

your case. Make careful notes of the

discussions.

46 Your opinion should remain

independent. You should not act on

any instruction or request to alter

or withhold your opinion unless you

think it is justified to do so according

to your own independent professional

judgement. If you have decided to

change your opinion, you should inform

the parties, explain your reasons, and

amend your report accordingly.

47 Once your report has been issued in

final form, it cannot be amended.

Sometimes, the person who instructs

you may seek a supplementary report

from you if additional information is

available.

VII. Attending case conference

VII

VII. Attending case conference

48 You may be required to attend hearings.

Make sure that you are informed of the

date (and any changes) and discuss

with the person who instructs you of

any scheduling difficulties on your part

well in advance.

49 Be very well-prepared. Bring all relevant

materials with you including journal

articles etc. that you have utilised in

forming your opinion and notes that

you have made during case conferences.

50 Use simple terms and be proactive in

explaining technical terms or jargons

when you give oral evidence. State your

opinion plainly and distinguish state-

ments of opinion from statements of

fact.

51 You may be cross-examined which can

be an intimidating and stressful experi-

ence. Adopt a professional, moderate

and objective demeanour. Do not argue

with the questioner or lose composure

in response to any attempts to ‘provoke

you’. Avoid a combative approach or

the use of humour or sarcasm. Make

notes of important issues raised by the

lawyers and the judge.

52 Other principles mentioned in previous

sections apply when you are being

cross-examined.

• you are there to assist the court /

tribunal, not to fight for your

instructing party’s case;

• be very well-prepared;

• listen to the question carefully and

answer honestly;

• do not provide information beyond

the question;

• if you do not understand the

question, ask for the question to be

restated or rephrased;

• if you do not know the answer to a

question, say so;

• do not testify on matters outside

your area of expertise;

• if you are asked to speculate,

qualify your answer.

VIII. Appearing in court / tribunal hearing

VIII. Appearing in court /

tribunal hearing

53 As an expert witness, you have personal

and professional responsibilities

regarding the evidence that you give.

Misleading information (e.g., scope of

expertise, conflict of interest), evidence

given in bad faith, and seriously

defective evidence can have untoward

and far-reaching legal consequences.

The professional or academic status

of an expert witness by itself offers

no excuses. The common law does

not provide immunity of an expert

IX. Liabilities of expert witnesses

Box 9: The case of The General Medical Council v Professor Sir Roy Meadow

Professor Sir Roy Meadow, an Emeritus Professor of Paediatrics and Child Health, was acting as a prosecution

expert witness. He gave evidence relating to probabilities of sudden infant death syndrome but did not make

clear that he was not an expert in statistics. Mrs. Clark was convicted of the murder of her first two sons

and received two life sentences. Her first appeal was dismissed. It later transpired that Professor Meadow’s

evidence was mistaken and some essential evidence had also been withheld from Mrs. Clark. She made a

second appeal and was set free in 2003. Her father then made a complaint to the General Medical Council

(GMC) alleging serious professional misconduct on the part of Professor Meadow. In 2005, the GMC found

him guilty and his name was erased from the register. He appealed to the High Court and the order of the GMC

was overturned.

The GMC appealed to the Court of Appeal (CA) in 2006. There were two distinct parts of the appeal. The

first was whether an expert witness should be entitled to immunity from disciplinary regulatory or fitness to

practise proceedings in relation to statements made or evidence given by him in or for the purpose of legal

proceedings. The second entailed a consideration of the GMC’s challenge to the High Court judge’s decision

that Professor Meadow was not guilty of serious professional misconduct. The CA allowed the first part of

the appeal and held that the Fitness to Practice Panel of the GMC had jurisdiction to entertain the allegations

against Professor Meadow. [In other words, common law does not provide immunity of an expert witness from

professional disciplinary proceedings for professional misconduct of the expert]. The second part of the appeal

was rejected on the ground that giving honest albeit mistaken evidence in the circumstances of Professor

Meadow’s case should not lead to the finding of ‘serious professional misconduct’ [Note: the test in Hong Kong

is “misconduct in a professional respect” and not “serious professional misconduct”].

The General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390

IX. Liabilities of

expert witnesses

witness from professional disciplinary

proceedings for professional misconduct

of the expert. (Box 9)

54 In Hong Kong, professional guidance

stipulates that an expert’s comments

on a professional colleague’s conduct,

competence, or fitness to practice

should be carefully considered,

justified, and offered in good faith. It is

unethical for a medical doctor / dentist

to make unjustifiable comments which,

whether directly or by implication,

undermines trust in the professional

competence or integrity of another

doctor / dentist.

22, 23

55 There may also be legal consequences. In

England and Wales, the legal immunity

historically enjoyed by expert witnesses

in respect to evidence they give has

been removed.

In Hong Kong, the

Code of Conduct for Expert Witnesses

provides that:

“Proceedings for contempt of court

may be brought against a person if he

makes, or causes to be made, a false

declaration or a false statement in a

document verified by a statement of

truth without an honest belief in its

truth.”

56 You are therefore strongly advised

to follow the guidance set out in this

document as well as any guidelines

issued by the relevant professional

bodies. You should also check whether

your professional indemnity covers

medicolegal work.

The Medical Council of Hong Kong, Code of Professional Conduct (2022), Part 2(E) s19.

The Dental Council of Hong Kong, Code of Professional Discipline (2019), s.9.

Jones v Kaney [2011] UKSC 13

Note 4.

IX. Liabilities of expert witnesses

Statutory instrument:

Code of Conduct for Expert Witnesses. Cap. 4A, The Rules of the High Court, Appendix D.

Cases:

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Bolitho v City and Hackney Health Authority [1996] 4 All ER 771

Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909

Jones v Kaney [2011] UKSC 13

Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430

Sandra Battersby v Allan [2017] NSWSC 1724

The General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390

The Ikarian Reefer [1993] Lloyd’s Rep 68

Zahid Anwar v Graceful Sound Limited HCPI 410/2008 & HCPI 370/2009

Other resources:

Academy of Medical Royal Colleges, Acting as an expert or professional witness — Guidance for

healthcare professionals (2019). (https://www.aomrc.org.uk/reports-guidance/acting-as-an-expert-

or-professional-witness-guidance-for-healthcare-professionals/)

British Medical Association expert witness guidance (2007). (https://innermosthealthcare.com/wp-

content/uploads/2016/02/expert-witness-guidance2.pdf)

X. References

Chiu JSP, Leung GK. Expert witnesses and area of expertise. Hong Kong Med J 2022 Feb;28(1):4-5.

(https://doi.org/10.12809/hkmj215125)

Coroner’s Court. Examples of findings which may be made by the Coroner or the Jury. (https://www.

judiciary.hk/en/court_services_facilities/cor.html)

General Medical Council. Acting as a witness in legal proceedings (2013). (https://www.gmc-uk.org/

ethical-guidance/ethical-guidance-for-doctors/acting-as-a-witness/acting-as-a-witness-in-legal-

proceedings)

General Medical Council. Doctors giving evidence in court. Duties of all witnesses. Para 79 (https://www.

gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/protecting-children-and-young-people/

doctors-giving-evidence-in-court)

The Dental Council of Hong Kong, Code of Professional Discipline for the Guidance of Dental Practitioners

in Hong Kong (2019). (https://www.dchk.org.hk/docs/code.pdf)

The Hong Kong Academy of Medicine Training Course for Expert Witnesses. (https://www.hkam.org.hk/

en/events/hkam-training-course-expert-witnesses)

The Medical Council of Hong Kong, Code of Professional Conduct for the Guidance of Registered Medical

Practitioners (2022). (https://www.mchk.org.hk/english/code/files/Code_of_Professional_Conduct_

(English_Version)_(Revised_in_October_2022).pdf)

The Medical Council of Hong Kong, Newsletter, Issue 22, December 2015. (https://www.mchk.org.hk/

files/newsletter22.pdf)

X. References

APPENDIX I

Code of conduct for expert witnesses

(O. 38 rr. 35, 37B and 37C)

Application of code

1. This code of conduct applies to an expert who has been instructed to give or prepare evidence for the

purpose of proceedings in the Court.

General duty to Court

2. An expert witness has an overriding duty to help the Court impartially and independently on matters

relevant to the expert’s area of expertise.

3. An expert witness’s paramount duty is to the Court and not to the person from whom the expert has

received instructions or by whom he is paid.

4. An expert witness is not an advocate for a party.

Declaration of duty to Court

5. A report by an expert witness is not admissible in evidence unless the report contains a declaration by

the expert witness that—

(a) he has read this code of conduct and agrees to be bound by it;

(b) he understands his duty to the Court; and

6. Oral expert evidence is not admissible unless an expert witness has declared in writing, whether in a

report or otherwise in relation to the proceedings, that—

(a) he has read this code of conduct and agrees to be bound by it;

(b) he understands his duty to the Court; and

Expert report to be verified

7. A report by an expert witness must be verified by a statement of truth in accordance with Order 41A of

the Rules of the District Court (Cap. 336 sub. leg. H).

Form of expert reports

8. A report by an expert witness must (in the body of the report or in an annexure) specify—

(a) the person’s qualifications as an expert;

(b) the facts, matters and assumptions on which the opinions in the report are based (a letter

of instructions may be annexed);

(d) if applicable, that a particular question or issue falls outside his field of expertise;

(e) any literature or other materials utilized in support of the opinions; and

Appendix I

(f) any examinations, tests or other investigations on which he has relied, and the identity and details

of the qualifications of the person who carried them out.

9. If an expert witness who prepares a report believes that it may be incomplete or inaccurate without

some qualification, that qualification must be stated in the report.

10. If an expert witness considers that his opinion is not a concluded opinion because of insufficient research

or insufficient data or for any other reason, this must be stated when the opinion is expressed.

11. An expert witness who, after communicating an opinion to the party instructing him (or that party’s

legal representative), changes his opinion on a material matter shall forthwith provide the party (or that

party’s legal representative) with a supplementary report to that effect which must contain such of the

information referred to in section 8(b), (c), (d), (e) and (f) as is appropriate.

Experts’ conference

12. An expert witness shall abide by any direction of the Court to—

(a) confer with any other expert witness;

(b) endeavour to reach agreement on material matters for expert opinion; and

reasons for any non-agreement.

13. An expert witness shall exercise his independent, professional judgment in relation to such a conference

and joint report, and shall not act on any instruction or request to withhold or avoid agreement.

Note: Proceedings for contempt of court may be brought against a person if he makes, or causes to be made,

a false declaration or a false statement in a document verified by a statement of truth without an honest

belief in its truth.

(L.N. 153 of 2008)

Appendix I

APPENDIX II

Form of Declaration

I declare that: -

I have read the Code of Conduct for expert witnesses and agrees to be bound by it;

I understand that I have an overriding duty to help the court impartially and independently on matters

relevant to my expertise.

I understand that my paramount duty is to the court and not to the person from whom I have received

instructions or by whom I am paid and that I am not an advocate for a party to the proceedings.

I have complied with and will continue to comply with that duty.

Signature ______________________ Date _____________________

Name _________________________

Appendix II

APPENDIX III

Statement of Truth

I, ____________________, believe that the facts stated in this report are true and that the opinions expressed

in it are honestly held.

Signature ______________________ Date _____________________

Name _________________________

Appendix III