APPLICATION TO RELY ON EXPERT EVIDENCE REFUSED: THE RULES WERE NOT FOLLOWED AND THE REPORT WAS “FAR BELOW THE STANDARD OF ANALYSIS THAT THIS COURT IS ENTITLED TO EXPECT FROM AN EXPERT WITNESS”

In North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) (Rev1) [2022] EWCOP 15 Mr Justice Poole disallowed an application by a respondent in relation to expert evidence.  The expert had been instructed without compliance with the procedural rules in place.  Further, the judge held, the doctor in question did not have the appropriate expertise in the subject matter, nor was the report sufficiently scientifically rigorous to be able to assist the court.

THE CASE

The claimant brought an application in relation to whether it was in the best interests of the first respondent to receive Covid-19 vaccinations. The first respondent lacked capacity, the application was opposed by the second respondent, one of the first respondent’s siblings.  The second respondent attempted to rely on medical evidence from a doctor in support of their case.

THE JUDGMENT IN RELATION TO EXPERT EVIDENCE

The judge explained why he had refused to admit the evidence from the doctor.

6. The Second Respondent made an application to rely on evidence of Dr Eccles relating to “treatments that would be available to E were he to contract SARS Cov-2.” It was said that the evidence of alternative treatments would assist the court in “putting itself in E’s shoes (as it must do) when making its judgment.” I heard and dismissed that application at an earlier hearing on 2 March 2022. I gave my reasons at that hearing but indicated that I would incorporate them in the written judgment to follow the substantive hearing.

6. Part 15 of the Court of Protection Rules 2017 provides:

 References to expert

15.1.  A reference to an expert in this Part—

(a) is to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings; but

(b) does not include any person instructed to make a report under section 49 of the Act.

…

Duty to restrict expert evidence

15.3.—

 (1) Expert evidence shall be restricted to that which is necessary to assist the court to resolve the issues in the proceedings.

 (2) The court may give permission to file or adduce expert evidence as mentioned in rule 15.2(1) and 15.5(1) only if satisfied that the evidence—

(a) is necessary to assist the court to resolve the issues in the proceedings; and

(b) cannot otherwise be provided either—

1. by a rule 1.2 representative; or

2. in a report under section 49 of the Act.

Court’s power to restrict expert evidence

15.5.—

(1) Subject to rule 15.2, no party may file or adduce expert evidence unless the court or a practice direction permits.

(2) When a party applies for a direction under this rule, that party must—

(a) identify the field in respect of which that party wishes to rely upon expert evidence, and the issues to which the expert evidence is to relate;

(b) where practicable, identify the expert in that field upon whose evidence the party wishes to rely;

(c) provide any other material information about the expert;

(d) state whether the expert evidence could be obtained from a single joint expert;

(e) provide any other information or documents required by a practice direction;

and

(f) provide a draft letter of instruction to the expert.

(3) When deciding whether to give permission as mentioned in paragraph (1), the court is to have regard in particular to—

(a) the issues to which the expert evidence would relate;

(b) the questions which the expert would answer;

(c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings;

(d) any failure to comply with any direction of the court about expert evidence; and

(e) the cost of the expert evidence.

(4) Where a direction is given under this rule, the court shall specify—

(a) the field or fields in respect of which the expert evidence is to be provided;

(b) the questions which the expert is required to answer; and

(c) the date by which the expert is to provide the evidence.

…

Contents of expert’s report

15.8.—

(1) The court may give directions as to the matters to be covered in an expert’s report.

(2) An expert’s report must comply with the requirements set out in the relevant practice direction.

(3) At the end of an expert’s report there must be a statement that the expert—

(a) understands his or her duty to the court; and

(b) has complied with that duty.

(4) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

8. Those rules are clearly predicated on an application being made prior to instructions being given to a proposed expert and prior to their report being obtained. However, in this case the Second Respondent, who was not then legally represented by Mr Hoar, instructed Dr Eccles and obtained a report from him prior to the application being made and heard. The other parties opposed the admission of evidence from Dr Eccles.

9. Dr Eccles’ c.v. was provided to the other parties and the court only very shortly before the hearing of the application. His c.v. shows that Dr Eccles has been a registered medical practitioner since 1993 with membership of the Royal College of Physicians in 1997 and GP registration the same year. For 10 years thereafter he did one to two sessions per week in local GP practices. He undertook Naturopathic training in the Czech Republic in 1999, obtained certification for Clinical Thermography in 2005, and became a Director of the World Academy of Anti-Aging Medicine in 2007. He was listed in a publication called Great Minds of the 21st Century, 5th Edition, and is the holder of two pending patents for discoveries in non-surgical hair restoration and computerised breast thermal imaging. He is a medical and research director for the Natural Dr Limited, 69 Harley Street, London W1. He says that his primary interest is in nutritional support of cancer patients and in “non-invasive methods for the restoration of cell health in general and in particular as this relates to breast and prostate health.” He is also medical director of HB Health Anti Aging Medicine at Beauchamp Place London SW6 and Medical Director to ThermoClock Limited.  He says he is “one of the UK’s leading experts in magnetic therapy”, advising manufacturers of magnets including Ladycare which uses a magnetic device to relieve dysmenorrhea – severe menstrual pain. Previously he was Senior Clinician in charge of the Harley Street Stress Clinic on Mondays and Wednesdays conducting consultations with patients on lifestyle advice and counselling on more efficient stress coping strategies.

10. Over the last 20 years he has published articles on the effectiveness of static magnets in healing chronic leg ulcers, knee osteoarthritis, endometriosis, pain, dysmenorrhoea and restless leg syndrome, and papers on thermography for the early detection of breast cancer. The only “publication” on his c.v. concerning Covid-19 is a YouTube video in 2020 entitled Vitamin D and Covid-19.

11. In his report, which he has titled “Witness statement” he says,

“I also make the statement as an independent practising clinician having treated several hundred patients who have presented in the early stage with SARS Cov2 symptoms and positive PCR test.”

He says treatment was mostly with vitamins “There has been uniform improvement and/or resolution of symptoms in most cases within 5 days.” He described these as “uncontrolled observations” meaning they were not part of a controlled study, but “no patients have required hospital in-patient treatment”. He continues,

“furthermore I make the statement as an expert in preventative medicine as the author of a review paper to provide practical information in how doctors working on the SARS Cov2 frontline in hospitals could protect themselves against potential infection and harm caused by SARS Cov2.”

The exhibited review paper to which he refers is by him as sole author. It is not published in a journal, let alone a recognised medical or scientific journal. It contains information about Vitamin D by reference to an article he also wrote on his own website in 2012.

12. Dr Eccles then cites a number of studies regarding Vitamin D and Vitamin C before turning to the use of Covid-19 vaccines. He says that “It has become very clear in recent months that the existing vaccines do not prevent illness, nor do they prevent transmission.” To support this opinion he cites two sources: a news article for Israel National News which is itself about a television interview with a single medical practitioner; and an article from an online publication called The Exposé which says it was “set up due to a lack of alternative to the lying mainstream media”. Dr Eccles then addresses evidence of complications of the vaccines before advising that not only are the vaccines “not working” but they “carry risk of potential life-changing side effects.” He then concludes, “based on these findings E is unlikely to gain any real benefit…” and “E is a person at significant risk from vaccine damage.”

13. The substantive issues for the court to consider in this case include ways, other than by vaccination, in which E might be protected from Covid-19 (if protection is needed at all), his susceptibility to complications from vaccination, and the efficacy of the vaccine. To that extent it can be argued that Dr Eccles’ report addresses some of the relevant issues. However, there are four principal difficulties with the proposal that Dr Eccles can give expert evidence to assist the court:

14. i)Dr Eccles’ c.v. and report do not reveal that he has a field of expertise which would enable him to assist the court in this case. An expert witness ought to have qualifications, knowledge, and experience in a relevant field to enable them to give opinion evidence with some measure of authority such that the court can rely on it. A certain level of familiarity with the relevant state of knowledge, learning, and practice within the field of purported expertise is required. By his c.v. and report Dr Eccles purports to have expertise and experience in counselling for stress, diagnosing breast cancer, anti-aging treatments, hair restoration, magnetic therapy, and preventative medicine. He does not have any specialisation in virology, epidemiology, or any other field of practice that would be recognised as relevant to the issues that the court has to determine in this case. The fact that he may have given vitamins to individuals does not make him an expert in the treatment of Covid-19. There is no analysis of that cohort of his patients and their health profiles, nor any comparison with patients who had not received vitamin treatments. He has not published any relevant research or papers related to Covid-19 in recognised medical or scientific publications

15. ii)An expert should use their particular knowledge and experience to put before the court relevant material in an independent, unbiased and fair manner. Dr Eccles’ evidence is not objective or balanced in any way. His report is wholly one-sided. It reads as polemical rather than as a disinterested expert report. There is no weighing of evidence. There is no hint that there might be a range of reasonable expert opinion. There is no recognition that there is any available evidence to support the contrary view that vaccination might be effective in preventing or reducing the symptoms caused by Covid-19, or that there may be medical opinion that vitamins are not effective in preventing the contraction of Covid-19, reducing the symptoms, or in preventing hospital admissions from Covid-19, for example. When determining whether to give permission to rely on expert evidence it is not for me to say whether Dr Eccles’ opinions are correct or incorrect, but it is clear that he has not acted objectively or in balanced way when purporting to advise the court.

iii)               An expert should apply their particular knowledge and experience to analyse the relevant material and evidence. In contrast, Dr Eccles’ report does not provide any kind of informed analysis of the evidence about Covid-19. He does not examine any evidence in support of the national immunisation programme. That is not to say he is not free to criticise such evidence but he should at least recognise its existence and then apply his knowledge and experience to analyse it. His uncritical reliance on a news article from Israel and another in an online magazine to support his assertion that “It has now become very clear in recent months that the existing vaccines do not prevent illness, nor do they prevent transmission” is far below the standard of analysis that the court is entitled to expect from an expert witness.

1. iv)An expert should ensure that they have considered all evidence relevant to their opinions in the specific case. Where the expert opinion concerns an individual, then their individual circumstances will be relevant. There is a lack of specificity to the case of E in Dr Eccles’ report. There is no mention in the body of his report that Dr Eccles has seen any documentation in this case. He does not refer to any medical records in the body of his report, but he does say, in what appears to be a standardised statement possibly for Data Protection Act purposes, that he has seen “the patient’s medical records”. He does not state what records or other documentation he has been provided with or the nature of his instructions. I do have an email from Mr F, husband of the Second Respondent who says that he sent Dr Eccles the two statements of Dr J, E’s GP which exhibit the mental capacity assessment identifying E by name. He does not appear to have sent to Dr Eccles any medical records but he did annotate Dr J’s statements and provided those notes to Dr Eccles. Dr Eccles does not refer to them and I do not know what they said. Save for a single reference to a proposal to give E statins, Dr Eccles does not refer to E’s medical history or current condition. He does not refer to E’s general health, his weight, or even his age. He does not refer to his vitamin levels which may have been relevant to the proposed treatment. He does not refer to, let alone discuss, E’s learning disability or how treatment would be given to him. He does not refer to his capacity to make decisions about the proposed treatment. He does not say that he needs to see E’s medical records before giving an opinion.

2. In addition to these fundamental concerns, I take into account that the procedural rules have been disregarded by the Second Respondent. She has obtained the report having instructed the expert unilaterally without the agreement of the other parties and  before seeking permission from the court. Therefore, there has been no opportunity for consideration of the letter of instruction to be sent to Dr Eccles. There has been no opportunity to consider what issues an expert should address and no opportunity for joint instruction of an expert. The premature instruction of Dr Eccles led to breaches of the Transparency Order because non-anonymised information identifying E was given to Dr Eccles without permission of the court. The other parties to this case are entitled to expect at least some compliance with the rules so that the proceedings are fair. The court is entitled to expect compliance with the rules so that it can manage cases proportionately, efficiently and to do justice. The disregard for Part 15 of the COP Rules would in itself be a strong reason not to permit this evidence to be admitted.

3. Even without permission to rely on Dr Eccles as an expert witness, the Second Respondent has the benefit of some of the freely available evidence that Dr Eccles has referred to and she can rely on that as part of her case.

4. The Second Respondent’s application for expert evidence states that the report is necessary to assist the court to put itself in E’s shoes. I cannot see how this statement or report from Dr Eccles can assist in that manner. Insofar as it is contended that E would, if he had capacity, have been opposed to vaccination, that does not make it necessary for the court to hear from a doctor with Dr Eccles’ practice and experience. This evidence will not tell the court what E would have wanted or consented to if he had capacity to make the decision in question. Indeed, Dr Eccles does not purport to do so, and his evidence gives the court no insight into what E wants or would have wanted had he not had his impairment or disturbance in the functioning of his mind or brain.

5. Had a suitably qualified expert able to address the relevant issues objectively and with relevant expertise been identified then at least the court could have considered whether such evidence might be necessary to assist the court to resolve the issues in the proceedings either as general evidence about vitamin treatment for Covid 19 or evidence specific to E’s case. But Dr Eccles is not that expert and his evidence will not assist the court. Had I not seen his report but only his c.v. I would not have considered Dr Eccles to be a suitable expert witness for this case. Having read his report that view is confirmed.

6. I made no separate order regarding the apparent breach of the Transparency Order by providing information to Dr Eccles. No sanction against F or her husband would be appropriate even if found to have been in contempt of court. The breach is a serious matter, but I have a full explanation from Mr F which I accept. He and F were acting as lay persons at the time albeit now represented. There was no malicious intent and it appears that no harm has been caused to E. However, I have directed that Dr Eccles destroys all hard and electronic copies of the material sent to him and confirms to the CCG and Official Solicitor in writing that he has done so.