GW & PW v Oldham Metropolitan Borough Council and another

[2005] EWCA Civ 1247

Medical experts reference and the consumer need for 2nd Expert

The Facts

The appellant parents (W) appealed against an order made in care proceedings brought by the Oldham Met Borough Councul in relation to their son. After the conclusion of the first limb of a "split" hearing, the judge had held that the son had suffered a non-accidental brain injury as a result of a shaking episode, that the injury had been caused by one of K’s parents, and that the threshold criteria under the Children Act 1989 s.31 were satisfied.

The judge relied on the evidence of a single expert in paediatric neuro-radiology and had dismissed applications by W to instruct a second expert. The local authority did not initially object to a second opinion being sought by the parents but did oppose the application when it became clear that the provision of that second opinion would delay the hearing.

The report of a second expert (when it was obtained) had expressed a clear and fundamental disagreement with the first expert and supported the parents’ case that their son’s injuries were not the result of any deliberate infliction of harm. In the circumstances, the parties had

agreed that the judge’s findings could not stand and that the case would have to be remitted to another family judge for re-hearing.

The Issues

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance. 

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all "deferred" to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

The Decision

In many such family cases it would be inappropriate to allow parents to obtain second opinions in respect of all the expert evidence. However, in certain cases, where medical evidence of non-accidental head injury or unascertained infant death became highly relevant, the courts would be slow to decline an application for a second expert, as that sort of expert evidence could not easily be taken issue with, without a further expert

opinion contradicting the first expert report in certain respects. Such a second opinion should normally only be permitted where the question to be addressed went to an issue of major importance. 

In this case there had been no real consensus or agreement between medical practitioners in the proceedings because they had all "deferred" to the single expert. In that unfortunate context the parents were permitted to obtain and rely upon a second opinion on what was on any footing the major medical issue in the case, Daniels v Walker (2000) CILL 1629 was applied in reaching this decision. (2) The protocol for judicial case management in public law Children Act cases ((2003) 2 FLR 719) was stated to be sufficiently flexible to allow for the obtaining of a second opinion in suitable cases. It was emphasised that the potential requirement for a second opinion should be addressed and recognised and then actioned as early as possible in the case. (3) Where complex medical issues were being considered, the need for a second opinion on any critical medical issue in the case was particularly significant and the provision and due assessment of such a second opinion by the trial judge

would provide a final judicial decision based on firmer foundations than otherwise would be the case. (4) If an opinion on a significant issue in the case was given by an expert with a previous clinical role in respect of the child or children (and hence an argument of lack of independence

or objectivity might arise). this provided a further ground for having a second opinion if one was sought by or for the parents. (5) The guardian had a pro-active role to play so as to make sure that all the relevant evidence had been collected for the court to make an objective

and informed decision. If a guardian took the view that a second opinion sought by parents was properly necessary he should not hesitate to say so and hence should not endeavour to maintain a neutral stance at all times.

Comment

A very important case in the child welfare arena. It shows the dangers and limitations of single expert witnesses in certain cases. It also shows the significance of having a second opinion to enable the court to make a balanced and objective decision. The case made the point that it would be wrong to rule out opinions from those with previous clinical involvement as that involvement could provide for expertise and excellence to be passed on to the court – however the other side of the coin was that such involvement heightened the strength of the argument for a second opinion from an independent expert not involved in the previous clinical history of the case.