Is the decision of a Joint Expert Final?
Mrs Grant contended that she was a disabled person within the meaning of the Disability Discrimination legislation. Whether she was disabled was tried as a preliminary issue and a psychiatrist was jointly instructed to report. The Joint Expert’s view was that she was not a disabled person. The Employment Tribunal heard lay witness evidence, read the joint report, and found that she was indeed disabled within the meaning of the Act.
Can the tribunal reach a finding of disability when an agreed medical expert report does not support such a finding?
The Employment Appeals Tribunal held that it could (albeit the Appeal was allowed to a limited extent on other grounds). The difficulty confronting the Employment Judge was reconciling the Expert Report with the evidence he heard from the Claimant; her husband; her son; and a friend as to her condition. He found this evidence to be compelling. The Expert’s report was summarised as follows:
a) The Claimant suffered from work related stress; a description which does not constitute a mental impairment for the purposes of the Act;
b) Such impairment was not substantial and did not have an adverse effect on the Claimant’s ability to carry out day-to-day activities;
c) The Claimant suffered from the condition for a period of only ten months and therefore the condition was not long term;
d) The Claimant at the time of the examination but not at the time of the alleged discriminatory acts was suffering from mixed anxiety and depressive disorder.
The Court held that whilst diagnosis of medical conditions is a matter for an expert it would be “an abdication of responsibility for courts or tribunals to accept uncritically the conclusions of any medical expert without ascertaining the factual basis upon which such conclusions are reached” especially where the conclusion of the expert rests upon findings of fact that, in turn rest upon the credibility of a party to the case rather than objective clinical assessments that can only be made by the expert. The Court noted that the Expert’s report contained what were arguably “concealed findings of fact” for example “there is no evidence that work related stress contributed to any problems to Mrs Grant to carry out any normal day to day activities”. Equally, where the report stated that there was “no objective medical evidence to substantiate that she had an impairment of concentration” that presented a difficulty as it did not set out what objective evidence there could have been. Whilst the Judge did not suggest that a tribunal should substitute its own view for that of a jointly instructed expert, it was considered that the tribunal may wish to adjourn the hearing in such circumstances to permit the expert to attend to give evidence, be asked questions and/or consider the evidence that had emerged and whether it differed from that told to him. However, the Judge stopped short of allowing the appeal considering that there was no error in law in the Tribunal having reached the decision it did without an adjournment.
Once again, this case demonstrates the Expert’s remit.
If the expert’s views are based on facts that were elicited at the consultation with the client, make sure that they are fully outlined in the report so that if the tribunal finds different facts, it is clear that the opinion may ultimately differ.
Finally, remember that the Expert needs to explain matters to the parties and Judge who, in the context of the expert evidence, are lay people. If, as here, there could have been objective medical evidence to demonstrate the point, explain what there could have been or why it is missing. It is you as the expert who has the understanding, not the lawyers!