WHY AN EXPERT WITNESS MUST EXAMINE THE OBJECTIVE EVIDENCE: WHY MEDICAL RECORDS ARE NORMALLY THE KEY

There  are several short passages in the judgment of HHJ Baucher in Ali v The Home Office [2020] EW Misc 27 (CC) which emphasises the need for expert witnesses to consider the objective evidence before reporting.   It also shows the importance of medical records (or the absence of matters in medical records) in relation to the assessment of credibility.

THE CASE

The judge was considering a claim for damages in a case where it was alleged that the claimant had been unlawfully detained.  The judge found for the defendant, but gave a judgment on the damages she would have awarded if the claim had succeeded.

THE JUDGMENT ON THE CLAIMANT’S EXPERT EVIDENCE

98.               Before turning to the respective heads of loss I need to say something about the expert evidence in this case. I consider there was a significance divergence in the expert evidence. It is perhaps unfortunate that Dr Apostolou was unable to join the hearing by CVP but I do not consider that the presentation of her evidence was affected by the fact that she had to give evidence by speaker phone. I found her to be an extremely hesitant and unimpressive witness. I appreciate that time to reflect on a question can be a virtue and result in a considered response but I found that the hesitancy was caused by the simple fact that she had no answer to the questions which Ms van Overdijk fairly put to her. Dr Apostolou had little or no experience with detainees.  I was also unimpressed that without my permission she sought to access further information on her computer when giving her evidence. Her failings in presentation were compounded by her failure to consider the objective evidence when reaching her conclusions.    I find that she deliberately prevaricated when she was cross- examined about the absence of any entries in respect of the GP entries in relation to the claimant’s mental health. She accepted that this was a relevant factor but when she was asked whether that made her question the claimant’s credibility she said at the time of her examination it did not. She was then asked whether it now affected her view. The answer, after a very long silence, was ultimately: “that is not my impression.” I find she avoided providing the court with an answer on a fundamental issue.

THE CLAIMANT’S OWN EVIDENCE

The claimant’s evidence was also judged against the absence of entries in the medical records.

104.           In his oral evidence the claimant did not consider his health had improved. He maintained that when he had visited his GP he had referred to his mental health issues. The claimant said his GP had told him that medication was not good for his long- term health and that is why he took matters into his own hands and went to an Afghan led counselling service.

105.          I reject the claimant’s evidence he advised his GP he was suffering from mental health issues. If the claimant had referred to such then the GP was required to make a note in the claimant’s records. I find that the claimant’s GP records are entirely silent on issues of mental health because the claimant never raised any problems with his GP. I have not seen any documentation in respect of the claimant’s attendance at any external counselling service and I am not satisfied that any such service was offered or provided on any formal basis to assist the claimant.

106.          Mr Denholm sought to persuade me that as Dr Das had accepted in cross- examination the incident with the claimant’s nephew fulfilled the ICD criteria and that made the claimant more vulnerable I should prefer the evidence of Dr Apostolou. However, Dr Das was unequivocal that the claimant was not suffering from PTSD and for the reasons already expressed I prefer his evidence.

107.           The claimant does not meet the ICD-10 definition and I find that Dr Apostolou had no answer on that issue. It was not a matter of: “clinical impression” but whether the claimant met the definition. He did not. Further, the objective evidence in the form of the claimant’s GP records did not support the diagnosis. Mr Denholm submitted that GP appointments are short and that a GP does not descend into detail but PTSD is a serious condition which requires careful noting.  I find had the claimant been suffering from PTSD it is inconceivable there would not have been some reference to it in his medical records.

108.           Thus, had I been required to do so I would have only awarded general damages for the claimant’s mild depression. He was not suffering from any mental condition prior to his detention but appears to have developed it whilst detained. His symptoms were present from around March 2017 and have improved since. His detention was not the sole cause of his depression as he had suffered from earlier distressing events.