WHEN EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee had never said. This is something we have seen several times before and is a disturbing aspect of expert evidence. In two of these cases the expert’s conduct would never have come to light if it had not been for covert recording.
THE REPORT IN THE HERALD
An expert psychiatrist was preparing a report to be used in tribunal proceedings. She interviewed the complainant and prepared a report.
“A fitness to practises tribunal found that she falsely claimed that he had cursed throughout the one hour 48 minute evaluation, told her that he kept taped conversations with “girning” customers while working as a call handler at the Criminal Injuries Compensation Authority (CICA) in Glasgow, and that he “felt like hitting people at work””
Unbeknown to the doctor the complainant was recording the interview. The doctor gave evidence at an employment tribunal where she “maintained her report was accurate when she knew it was not”.
“In her report to his employment tribunal, Dr McLennan claimed Mr A had told her that “he had never needed any help or assistance because of his conditions and they did not disable him in any way”. However, the MPTS said it could find “no evidence that Mr A said this”, either in the audio recording or from Dr McLennan’s own notes.”
IF YOU HAVE A FEELING THAT YOU HAVE READ SOMETHING LIKE THIS BEFORE
You may be thinking of F (a Minor)  EWHC 2149 (Fam). Again a report by a psychiatrist. Again the consultation was covertly recorded.
Ms Taryn Lee QC and Ms Olivia Weir prepared a very extensive schedule prefaced by the following summary of the findings they invited the Court to make:
1. Dr Harper has either misread or exaggerated the mother’s presentation during the appointments. The recordings do not support the assertion that the mother was at any point agitated, abrupt, irritated, defensive or frustrated. Indeed in respect of (iii) and (v) the conversations never, in fact, took place.
2. Dr Harper misrepresents, inaccurately surmises and/or falsely asserts that the mother made comments listed in the body of the schedule. The comments set out and attributed to the mother were either (a) not said by her in those terms, or (b) other factual information provided by the mother has been re-interpreted by Dr Harper and presented as a quote of the mother with a negative or twisted emphasis attached to it. Dr Harper then uses these ‘quotations’ by the mother to form his conclusions and recommendations.
3. Dr Harper records that the mother reported/stated various facts and/or provided the accounts listed below when in fact there is no evidence during either appointment that the subject was even discussed or if the subject was discussed these comments were not made at any point. Dr Harper has fabricated these conversations/responses and has chosen to attribute negative comments to the mother including assertions that during the assessment sessions the mother called previous experts liars, which she simply has not done. Dr Harper has abused his position of trust as a professional and as a doctor and his actions in fabricating these conversations, comments and conclusions are abusive to this vulnerable mother and are a contempt of court.
4. Dr Harper states that he completed the following psychometric tests: It is not easy to discern at what point in the assessment sessions Dr. Harper states he administered these psychometric tests and he is invited to provide (a) all of the relevant guidance and assessment papers/questions and identify within the transcripts where the assessments were conducted.
5. Dr Harper suggests that the mother was reluctant and/or unable to provide information in the following matters: Dr Harper did not, in fact, ask any specific or structured questions to elicit a response to any of the matters that he then seeks to criticise the mother for and in respect of. Some matters that he suggests she refused to provide information/answer questions in respect of [they] were never at any point raised by Dr Harper.
6. Dr Harper misrepresents what the mother has actually said, in such a manner as to create a negative impression of the mother in the examples identified.
7. Dr Harper inaccurately quotes other experts’ reports in a manner that presents a negative impression of the mother.
8. Dr Harper then relies upon his own false reporting of what the mother is supposed to have said to reach his conclusions, which ultimately lead to a recommendation of separation of the siblings and adoption of the youngest two children.
9. It is asserted that neither Dr Harper’s handwritten notes nor his comments regarding the 6th April 2016 can be relied upon for the reasons asserted in the schedule.
As these findings were particularised it became clear that the allegations extended to: ‘false reporting’; ‘inaccurate quoting’ designed to present the Mother in a ‘negative light’; ‘fabrication of conversations’ and deliberate ‘misrepresentation’. In cross examination Ms Lee accused Dr Harper of ‘lying’.
AN EXAMPLE IN A CIVIL CONTEXT
Another example arises in the judgment of Mr Justice Coulson in Stagecoach Great Western Trains -v- Hind & Steel  EWHC 1891 (TCC). An expert for the claimant was giving evidence about the defendant’s care for her trees (a tree having fallen onto a railway line). Here again we have a judge rejecting a large (indeed almost all) of an expert’s evidence because of faulty attribution of words that had, in fact, never been said. See the discussion here
When he visited the site in June 2010, Mr Sheppard (who had been instructed by the claimant and was already liaising with the claimant’s solicitor) briefly inspected the site and then had what was called an informal conversation with Ms Hind. As they were speaking, and rather betraying that alleged informality, Mr Sheppard made some rough notes on a small scrap of paper. He then went back to his car and expanded on his notes, principally by inserting questions into the notes that he had already made. There has been a long-running dispute about the accuracy of the notes. Moreover, although he had told Ms Hind that he would send her a copy of the notes for her to agree, he failed to do so. There was no explanation for this failure.
When he was cross-examined by Mr Stead, on behalf of Ms Hind, it quickly became apparent that there were significant inaccuracies in the notes that Mr Sheppard had made. For example, Mr Sheppard noted that Ms Hind had said that she “never” went to the area of the garden where the Tree was. Ms Hind vehemently denied saying that, and stressed instead that she had told Mr Sheppard that she did go there (as part of her general observations of the trees), albeit that (because of the overgrown nature of the area) her visits were relatively rare. In cross-examination, he accepted that, although he could no longer remember the conversation, “rarely” was the word she had used. There was no explanation as to why, in his notes, he had deleted the word “rarely” and inserted the word “never”.
There were numerous other errors and misleading changes of emphasis in Mr Sheppard’s notes.Again by way of example, Ms Hind gave evidence that, during that conversation, she told Mr Sheppard about the work which Mr Steel had done. Although Mr Sheppard could not remember the conversation, he continued to deny that she had made any mention of Mr Steel’s work. That seems inherently implausible, since she would have had no reason not to mention that work, particularly as she was talking about the trees in her own garden. That implausibility was then underlined by the fact that, in his first report, dated 2010, Mr Sheppard made express reference to the work done to the trees in the garden. There was no source for that information other than Ms Hind. This again demonstrated the inaccuracies of Mr Sheppard’s note-taking technique, and his equally unreliable recollection of the conversation.
Still further, I noted that, in his reports, Mr Sheppard sets out a large number of things which he said Ms Hind had said to him during that interview. They are expressed as things which Ms Hind ‘stated’. But these were not matters which were referable even to the (inaccurate) notes that he had made. When Mr Stead cross-examined him about this, he accepted that these were his words, rather than Ms Hind’s, and were his ‘interpretation’ of what she said or would have said. That meant that the reports were doubly misleading, both because they failed accurately to report what Ms Hind had actually said, and because they identified her as saying things which were, in truth, just Mr Sheppard’s interpretation of what he thought she would have said.