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14 June 2021 is the day in the Chinese calendar to celebrate the Dragon Boat Festival.  These local holidays are a reminder of the deep cultural heritage enjoyed by the Chinese people. Traditionally this festival falls on the fifth day of the fifth month of the traditional Chinese calendar. As such it varies from year to year when compared to the Gregorian calendar.

For those who have a curiosity about the world we share a visit to the Wikipedia entry on this festival will be rewarding:

https://en.wikipedia.org/wiki/Dragon_Boat_Festival

It is ten days since I last wrote about the historical GNM issue. I have been somewhat preoccupied with current GNM issues which, in a totally unplanned manner are revolving around the ‘expert and expertise’ issues. On this basis, what an absolutely wonderful article by Sailesh Mehta published on this forum.  (https://www.thepmfajournal.com/education/medico-legal-forum/post/the-role-of-expert-witnesses-in-miscarriages-of-justice)

Although the focus of this highly informative article relates to actual cases where ‘experts’ have contributed to gross miscarriages of justice, the underlying message is that being called as an ‘expert’ does carry with it duties and responsibilities ‘to justice’.  The words used are actually ‘to the court’. When considering who or what the ‘court’ might be, the standard answer is that it depends on the type of court, but in essence it is the entity that is seeking to establish truth and thereby guilt or innocence. The expert must explain the nuances of fact that will help to determine that truth. For cases where there is no dispute on facts, experts are not needed. Experts are asked to give opinions on fact which are based on their particular expertise. They are asked to assist the court in the process of establishing the truths that are going to be considered by the Judge(s) and / or the Jury. Some crimes are so complicated that only an expert can fully comprehend the extent of the complicity. I have no problem with getting an expert to break down and simplify financial crimes, but when it comes to medical matters, I do have some major concerns when experts are used in a partisan and adversarial way.  There are ‘guidelines’, ‘rules’, ‘declarations’ and so forth that are attempts by the legal profession to clarify the duties and obligations of the experts, but do they work?

A major problem comes from the ‘expert’ who has not lived long enough and has not experienced enough to understand the essential role of ‘humility’ when providing opinion. The bad expert is like the novice surgeon who is unaware of the actuality of their incompetence. Unconscious incompetence. Seniority is not a guaranteed cure for this. Indeed, it can have the opposite effect, with some ‘experts’ developing a level of arrogance that barristers can feed from in the court room. How frail the human ego! In a fawning and supplicating manner, the smart and ruthless, barrister will guide an expert into making that damming ‘sound bite’, which will be hammered into the minds of the Jury. This certainly happened in the case of Dr Mak and I did refer to this in my letter to the local English language paper, The South China Morning Post (SCMP). I provided a link in the previous posting and quite openly identified the internationally renowned microbiologist Professor Yuen Kwok-yung. He made statements in court that were ‘unwise’ and because of his ‘international renown’ his opinions made the headlines and the Judge and Jury were sufficiently swayed. But in a karmic manner his righteous indignation came back to haunt him as he tried to diminish the death of one of his own patients in a University Teaching Hospital. Arrogance is one of the enemies of greatness in medical professionals. That is not to say that an expert should not be clear and confident in what they say and the opinions they express. They should allow, however, for the fact that they are an expert and so cannot speak for the ‘reasonable’, the ‘average’, the ‘regular’, mindset of others. I know it happens but have just received confirmation that the fundamental flaw and weakness of medical experts continues and thrives with opinions on the “standard expected of the reasonable doctor” basis. This is the very important point highlighted in the article by Sailesh Mehta: “Is there a reliable body of knowledge or experience to underpin the expert’s evidence?” This is one of the key considerations that the Judge must make when allowing or excluding expert evidence.

Today is not an easy time to be a Judge. There never is an easy time when having to make decisions that have a significant social effect. What is making things even more difficult for the Hong Kong judiciary are the political overtones unrelated to the law per se. Yes, 2019 was a very tense time in Hong Kong. Peaceful protests, morphed into riots and essentially urban terrorism that was tearing Hong Kong apart. We were saved by the virus and now in 2021 the processes of the law must focus on what happened in 2019. With so much evidence posted online, social media, news outlets and so forth it is impossible to ignore the breaches of law in many cases. And so, with guilt evident, it is the duty of the Judge or Magistrate to make the appropriate sentence. How do you do this in a highly charged political atmosphere which has resulted in some very disturbing attacks and threats on the Hong Kong judiciary? This is a very serious matter and was addressed directly by the new Hong Kong Chief Justice, Andrew Cheung Kui-nung in his inaugural address this January, I quote, “Whilst the freedom of speech of everyone in society must be fully respected, there must not be any attempt to exert improper pressure on the judges in the discharge of their judicial functions” Adding: “In this connection, it has to be stressed that attempts to exert undue pressure on our judges by means such as threats of violence or doxxing are as futile as they are reprehensible.” He later made a comment directly to the Judges: “Focus on your own case. Focus on the law. Focus on the issues… Never mind what people will say about your decision. You just decide your case regardless.”

In the previous blog I have drawn specific attention to the justification of sentencing given by the Honorable Judianna Barnes. Let me be quite clear there is no element of politics in this criticism. I have quoted verbatim paragraph 45 which illustrates the lack of logic in the Judicial decision. I do that not as an expert in the Law but as an expert in Critical Thinking. Now who is being arrogant?! Not me. Critical Thinking is what we do, as Doctors as Scientists. What about lawyers? Even Judges? Do they know what it means? How can they fool themselves and us (we, the people) if they do not apply logic to their decisions and fail to recognise the moral and ethical failure of applying reason to the concept of what is ‘reasonable’.

An expert cannot state what is reasonable based on their opinion and experience. This is not objective. To be objective when stating what is ‘reasonable’, ‘responsible’, ‘expected’; we need data, a population, a normal distribution and some basic statistics. When prosecutors attempt to deny valid data points from being presented, they are knowingly and deliberately attempting to pervert the course of Justice. Andrew Cheung is correct in demanding the Judiciary are treated with respect. They do an extremely difficult job and for the most part do it well. It therefore becomes extremely important that if and when miscarriages of justice are brought to the attention of the Department of Justice that they take action. I have to make a case: not as a doctor, not as a lawyer but as a Critical Thinker. In blog 2 I have provided objective evidence of the lack of logic in the Judicial analysis of the ‘crime’. This exposes the great weakness, in Law and in Medicine, of the notion of consent. The more we try to define it the more elusive it becomes. What we cannot do is to say that the consent process cannot be contextualised and instead be regarded as a unique event. What does this mean? Those who provide sessional laser therapy will understand the reality of the ‘roll over’ consent. That means to say that having gone through the full consenting process for the initial treatment, the consent for subsequent treatments need not be so exhaustive in detail. Any medico-legal scholar who claims that each consenting process is unique and independent is living in an alternative reality. The constructs that determine reality, in particular time, are not limitless. Experts need to know that. Critical Thinking can be done from an armchair, but it needs to be based on reality. The medico-legal challenge in GNM is to keep it real. That was evident in the case of David Sellu, in the case of Dr Bawa-Garba and so many more. Contextualising healthcare events is essential and underlined by the Williams report (see blog 1). Dr Mak has been made a criminal by a fundamentally flawed system, not by her actions. And that is wrong (in my humble opinion).

 

See also Gross Negligence Manslaughter in Healthcare: The medico-legal dilemma (Blog no.1)
See also Gross Negligence Manslaughter in Healthcare: The medico-legal dilemma (Blog no.2)
See also Gross Negligence Manslaughter in Healthcare: The medico-legal dilemma (Blog no.4)

 

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Andrew Burd (Prof)

The Chinese University of Hong Kong.

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