Expert Witness Guidelines issued by MMC

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The Malaysian Medical Council has issued an Expert Witness Guideline for doctors dated 25th November 2013 as below:-

 

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MAJLlS PERUBATAN MALAYSIA

(MALAYSIAN MEDICAL COUNCIL)

Kementerian Kesihatan Malaysia

(Ministry Of HealllJ Malaysia)

BLOK B, ARAS BAWAH

JALAN CENDERASARI

50590 KUALA LUMPUR

 

25 November 2013

 

SEPERTI SENARAI EDARAN

YBhg. Datuk/Dato/Prof,/Tuan/Puan,

 

GARIS PANDUAN EXPERT WITNESS, MAJLlS PERUBATAN MALAYSIA

 

Perkara di atas adalah dirujuk dengan segala hormatnya,

 

2. Untuk makluman Y.Bhg. Datuk/Dato’/Prof.Tuan/Puan,  Majlis Perubatan

Malaysia telah memurnikan Garis Panduan Expert Witness berdasarkan maklum

balas daripada pelbagai pihak di mesyuaratnya pada 18 Jun 2013,

 

3. Sehubungan itu, bersama-sama ini disertakan garis panduan yang

dimaksudkan untuk rujukan Y,Bhg, DatuklDato’/Prof.lTuan/Puan, Garis Panduan

yang sama juga boleh dimuat turun daripada laman web Majlis Perubatan Malaysia :

www.mmc.gov.my (bahagian Ethical Code and Guidelines),

 

 

Sekian, terima kasih.

 

“BERKHIDMAT UNTUK NEGARA”

 

 

Saya yang menu rut perintah,

 

(DATUK DR . NOOR HISHAM BIN ABDULLAH)

Yang Di Pertua

Majlis Perubatan Malaysia

 

 

 

 

SENARAI EDARAN

 

MALAYSIAN MEDICAL ASSOCIATION

Bangunan MMA

Jalan Pahang

53000 Kuala Lumpur

 

CONSUMER’S ASSOCIATION OF PENANG

10 Jalan Masjid Negeri

11600 Pulau Pi nang

 

FEDERATION OF MALAYSIAN CONSUMERS ASSOCIATIONS

10-1 Bangunan SKPPK

Jalan SS 9 N17

47300 Petaling Jaya

Selangor

 

FEDERATION OF PRIVATE MEDICAL PRACTITIONERS

G-1 Medical Academies of Malaysia

210 Jalan Tun Razak

50400 Kuala Lumpur

 

ACADEMY OF MEDICINE MALAYSIA

G-1 Medical Academies of Malaysia

210 Jalan Tun Razak

50400 Kuala Lumpur

 

MEDICO-LEGAL SOCIETY OF MALAYSIA

Unit 5.03, 5th Floor

Straits Trading Building

No 2 Lebuh Pasar Besar

50050 Kuala Lumpur

  

 

 

EXPERT WITNESS

 

1. Expert witnesses may be sought by the parties in legal proceedings, or a disciplinary inquiry

of the Malaysian Medical Council (“MMC”) or other organization(s} hereinafter termed as

“adjudicating bodies”, unless otherwise stated.

 

2. The Evidence Act provides for the opinion of experts in legal proceedings.

 

3. The MMC, when considering the evidence in a disciplinary inquiry, bears in mind the

provisions of the Evidence Act.

 

4. This guidance is provided for those who instruct experts and the experts themselves on their

role in legal proceedings or disciplinary inquiries.

 

5. The MMC’s guidance “Good Medical Practice” sets out the principles which underpin good

care. When registered medical practitioners (“RMP”) act as expert witnesses, they take on a

different role from that of a RMP providing treatment or advice to patients. However, the

principles set out in “Good Medical Practice” also apply to RMPs who are expert witness.

 

6. This guideline does not apply to witnesses of facts.

 

Who is an expert witness?

 

7. A RMP is qualified to testify as an expert if he has special knowledge, skill, experience,

training, or education sufficient to qualify him as an expert on the subject to which his

testimony relates. Such special knowledge, skill, experience, training, or education must be

shown before the witness may testify as an expert.

 

8. An expert witness’ special knowledge, skill, experience, training, or education may be shown

by any admissible evidence, including his own testimony.

 

9. An expert witness may be appointed by any party in legal proceedings or a disciplinary

inquiry.

 

Qualifications of an expert witness

 

10. Prior to admitting an expert witness and/or an expert’s report to an adjudicating body, the

adjudicating body shall have to be satisfied that:

 

a. he has the appropriate expertise and experience;

b. he is familiar with the duties of an expert;

c. there is no actual or potential conflict of interest;

d. he has been fully and properly instructed by the party requesting his evidence;

e. there is no objection by the other parties, including the adjudicating body, to his

appointment as an expert witness.

 

Responsibilities of an expert witness

 

11. The duty of the expert witness is to assist the adjudicating body on matters that are within

his expertise and he must maintain neutrality at all times. This duty is paramount and

overrides any obligation of the expert to the party who has instructed him or by whom he is

compensated.

 

12. The expert’s opinion should be independent, providing objective and unbiased opinion{s) on

matters within his expertise. A useful test of independence is that the expert would provide

the same opinion{s) if instructed by an opposing party. ..

 

13. If an expert changes his opinion at any time, such change{s) should be communicated

immediately to the adjudicating body and the other parties in the proceedings.

 

Power to admit expert evidence

 

14. The adjudicating body has the right to decide on the admissibility of the testimony of an

expert witness or an expert’s report.

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15. When any party applies to the adjudicating body for the admission of the testimony of an

expert witness or an expert’s report, he shall identify:

 

a. the area in which expert evidence is to be relied upon; and

b. the expert in that area on whose evidence he wishes to rely on.

 

16. The adjudicating body may, at or before the trial of any action, or disciplinary inquiry, by

order, limit the number of expert witnesses who may be called at the trial or disciplinary

inquiry to such number as it may specify.

 

17. The adjudicating body may, at any stage, direct a discussion between experts for the

purpose of requiring them to:

 

a. identify the issues in the proceedings; and

b. where possible, reach agreement on an issue.

 

18. Where the experts reach agreement on an issue during their discussions, the agreement

shall not bind the parties, unless the parties expressly agree to be bound by the agreement.

 

19. The adjudicating body shall decide on the weightage to be given to the testimony of an

expert witness or an expert’s report.

 

Expert evidence

 

20. Expert evidence is to be submitted in the manner and time as directed by an adjudicating

body.

 

21. Expert evidence is to be in writing unless directed otherwise by the adjudicating body.

 

22. An expert report is to be submitted to the MMC and the other parties in the inquiry at least

ten working days before the date of the inquiry.

 

23. An expert’s report shall:

 

a. give the expert’s qualifications;

b. give details of any literature or other material which the expert witness has relied on in

making the report;

c. contain a statement setting out the issues which he has been asked to consider and the basis

upon which the evidence was given;

d. if applicable, state the name and qualifications of the person who carried out any test(s)

which the expert has used for the report and whether or not such test(s) has been carried

out under the expert’s supervision;

e. where there is a range of ‘Opinion on the matters dealt with in the report:

 

i.                     summarise the range of opinion; and

ii.                   give reasons for his opinion;

 

f. contain a summary of the conclusions reached

 

g. contain a statement of belief of correctness of the expert’s opinion; and

 

h. contain a statement that the expert understands that in giving his report, his overriding duty

is to the adjudicating body and that he complies with that duty.

 

24. If, after the exchange of reports, an expert witness changes his view on a material matter

after having read the other parties’ expert reports; or for any other reason, such change of

view shall be communicated, through legal representative(s), to the other parties and the

adjudicating body without delay.

 

25. Where expert evidence refers to photographs, plans, calculations, analyses, measurements,

surveyor audit reports or other similar documents, they must be provided to the other

parties at the same time as the exchange of reports.

 

Conflict of Interest

 

26. A RMP involved in the management of a patient or working in the same healthcare facility or

provider or Ministry as the RMP in the legal proceedings or disciplinary inquiry, shall not

appear as an expert witness in such legal proceedings or disciplinary inquiry.

 

27. If there is any matter that gives rise to a potential conflict of interest, such as any prior

involvement with one of the parties, or a personal interest, this shall be disclosed to the

instructing party, the opposing parties and the adjudicating body without any delay.

 

28. An expert is not disqualified from giving evidence by reason only of a preexisting

relationship with the party that proffers the expert as a witness, but the nature of the preexisting

relationship shall be disclosed. The expert should make it clear whether, and to

what extent, the opinion is based on the personal knowledge of the expert (the factual basis

for which might be required to be established by admissible evidence of the expert or

another witness).

 

29. The RMP may continue to act as an expert only if the adjudicating body decides that the

conflict is not material to the case.

 

Joint expert

 

30. In any cause or matter in which any question for an expert witness arises, an adjudicating

body may at any time, on its own motion or on the application of any party, appoint an

independent expert or, if more than one such question arises, two or more such experts, to

inquire and report upon any question of fact or opinion not involving questions of law or of

construction.

 

31. An expert appointed by an adjudicating body shall be referred to as such. He shall, if

possible, be a person agreed between the parties and, failing agreement, shall be nominated

by the adjudicating body.

 

 

 

The singular shall be treated as the plural and the male gender as the female gender in this

document.

 

References

1. California Evidence Code. Expert Witnesses & Evidence, 2010

2. Evidence Act 1950

3. General Medical Council. Acting as an expert witness, 2008

4. Malaysian Medical Council. Expert Witness, 2007

5. MEJ Black CJ. Practice Direction: Guidelines for expert witnesses in proceedings in the

Federal Court of Australia, 2008

6. Rules of Court 2012

 

Acknowledgements

 

The Council Committee is grateful for feedback from:

 

1. Members of the Council

2. Association of Private Hospitals of Malaysia

3. Federation of Private Medical Practitioners Associations of Malaysia

4. Medico-Legal Society

 

The draft of this document was prepared by a Council Committee comprising Dr Milton Lum Siew

Wah (Chairperson), Prof Azad Hassan Abdul Razack, Prof Nor Azmi Kamaruddin, Dr Chang Keng Wee,

Datuk Dr Ghazali Ahmad Kutty, ProfPeh Suat Cheng and ProfDato Abdul Hamid Abdul Kadir.

The committee is grateful to Dr Shireen Mahalingam, Dr Cheah Xian Nian, Cik Syazana Ramli, Cik

Nurul Ahya Mohd Razali and Cik Nabila Hasnin Ahmad of the Council secretariat for secretarial

support.

 

Adopted by the Council at Its meeting on 18 June 2013

 

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