A
person 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. This type of persons include the
registered medical practitioner. Such special knowledge, skill, experience,
training, or education must be shown before the witness may testify as an
expert. Furthermore, the Malaysian Medical Council’s has formed a guidance
called the “Good Medical Practice” in giving guidelines for these registered
medical practitioner to testify as an expert witness in line with the Evidence
Act.
In
every legal proceedings, the Malaysian Evidence Act provides for the opinion of
legal experts. The Malaysian Medical Council’s guidance “Good Medical Practice”
sets out the principles which support good care. When registered medical
practitioners act as expert witnesses, they take on a different role from that
of a registered medical practitioners providing treatment or advice to
patients. However, the principles set out in “Good Medical Practice” also apply
to registered medical practitioners who are expert witness. An expert witness
may be appointed by any party in legal proceedings. There are a few
requirements that needs to be fulfilled before a person is qualified as an
expert witness, i.e. inter alia, he has the appropriate expertise and
experience; he is familiar with the duties of an expert; there is no actual or
potential conflict of interest; and there is no objection by the other parties,
including the adjudicating body, to his appointment as an expert witness.
There
are few responsibilities of an expert witness. Firstly, the duty of the expert
witness is to assist the adjudicating body on matters that are within his
expertise. It is very important to note that he must maintain impartiality at
all times. He must not be bias. This duty is vital. It overrides any obligation
of the expert to the party who has instructed him or by whom he is compensated.
The courts in Malaysia has laid down a useful test of independence. This is to
be done by asking the question whether that the expert would provide the same
opinion if instructed by an opposing party.
Reports
given by the expert witness will later be classified as expert evidence. Expert
evidence is to be submitted in the manner and time as directed by an
adjudicating body. Amongst others, an expert evidence by an expert witness must
contain the expert’s qualification; give details of any literature or other
material which the expert witness has relied on in making the report; contain a
statement setting out the issues which he has been asked to consider and the
basis upon which the evidence was given; and 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. In certain
circumstances, in any cause 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. For more
information on the extension of the principles stated in the MMC’s Code of
Professional Conduct, its guideline “Good Medical Practice” and other
guidelines of the MMC, please visit http://www.mmc.gov.my/v1/docs/2011%203%20Confidentiality%20guidelines%20Approved%20on%2011%20October%202011_1.pdf
References:
1. Evidence
Act 1950
2. Malaysian
Medical Council. Expert Witness, 2007
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