Pitfalls

The potential pitfalls of forensic medical practice are many. Most pitfalls may be avoided by an understanding of the legal principles and forensic processes—a topic of postgraduate rather than undergraduate education now. The normal "doctor-patient" relationship does not apply; the forensic physician-detained person relationship requires that the latter understands the role of the former and that the former takes time to explain it to the latter.

Meticulous attention to detail and a careful documentation of facts are required at all times. You will never know when a major trial will turn on a small detail that you once recorded (or, regrettably, failed to record). Your work will have a real and immediate effect on the liberty of the individual and may be highly influential in assisting the prosecuting authorities to decide whether to charge the detained person with a criminal offense.

You may be the only person who can retrieve a medical emergency in the cells—picking up a subdural hematoma, diabetic ketoacidosis, or coronary thrombosis that the detaining authority has misinterpreted as drunkenness, indigestion, or simply "obstructive behavior." Get it right, and you will assist in the proper administration of the judicial process, with proper regard for human rights and individual's liberty. Get it wrong, and you may not only fail to prevent an avoidable death but also may lay yourself open to criminal, civil, and disciplinary proceedings.

You clearly owe a duty of care to those who engage your services, for that is well-established law. The issue of whether a forensic physician owes a wider duty to the victims of alleged crime was decided in the English Court of Appeal during 1999 (35). A doctor working as an FME examined the victim of an alleged offense of rape and buggery (sodomy). The trial of the accused offender was fixed, and all prosecution witnesses were warned and fully bound, including the FME.

The trial was scheduled to begin on December 7, and on December 6, the FME was warned that she would not be required to attend on the first day of trial but would be needed some time after that. The trial commenced on December 7, and the accused pleaded not guilty. On Friday, December 8, the FME was told that she would not be needed that day but would be required the following week. She did not state that this would cause any problem. However, on December 11, the FME left the country for a vacation. On December 14, the police officer in charge of the case spoke by telephone with the FME. She said she could not return to give evidence before December 19. The remain der of the prosecution case was finished on December 14. The trial judge refused to adjourn the case until December 19. On December 20, the judge accepted a defense submission of no case to answer and directed the jury to return a verdict of not guilty. A few weeks later, the FME was convicted of contempt of court for failing to attend court to give evidence, and she was fined.

The female victim commenced civil proceedings against the FME, alleging negligent conduct in failing to attend, as warned, to give evidence. In her claim, the claimant asserted that if the FME had given evidence (presumably in accordance with her witness statement), the trial judge would have refused the defense submission of no case to answer. The claimant also contended that on the balance of probability, the accused would have been convicted because the FME's evidence would have undermined the credibility of the accused's defense that no anal interference had occurred. The claimant claimed that the FME owed her a duty of care to take all reasonable steps to provide evidence of the FME's examination in furtherance of the contemplated prosecution and to attend the trial of the accused as a prosecution witness when required. She claimed to suffer persistent stress and other psychological sequelae from failing to secure the conviction of her alleged assailant and knowing that he is still at large in the vicinity.

The claimant did not contend that there was any general duty of care on the part of a witness actionable in damages at the suit of another witness who may suffer loss and damage through the failure of the first witness to attend and give evidence in accordance with his or her witness statement.

When the case came before the Court of Appeal, Lord Justice StuartSmith stated that the attempt to formulate a duty of care as pleaded,

"is wholly misconceived. If a duty of care exists at all, it is a duty to prevent the plaintiff from suffering injury, loss or damage of the type in question, in this case psychiatric injury. A failure to attend to give evidence could be a breach of such duty, but it is not the duty itself.." Later, Lord Justice Stuart-Smith stated:

"it is quite plain in my judgment that the defendant, in carrying out an examination at the behest of the police of Crown Prosecution Service, did not assume any responsibility for the plaintiff's psychiatric welfare; the doctor/patient relationship did not arise."

He concluded his judgment:

"it is of no assistance to the plaintiff here in trying to construct a duty of care to attend court to give evidence which, as I have already pointed out, could amount to breach of a wider duty which is not alleged and could not be supported."

The other two Lords Justice of Appeal agreed. Lord Justice Clarke observed that:

"In (the circumstances of the case) any duty of care owed (by the FME) must be very restricted. It seems to me that she must have owed a duty of care to carry out any examination with reasonable care, and thus, for example, not to make matters worse by causing injury to the plaintiff. It also seems to me to be at least arguable that where an FME carries out an examination and discovers that the person being examined has, say, a serious condition which needs immediate treatment, he or she owes a duty to that person to inform him or her of the position."

The plaintiff's claim against the FME for damages was dismissed, and it was confirmed that there was no duty of care owed by the FME to the victim to attend the trial as a prosecution witness when required.

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