Tuesday, 12 November 2013
Malaysian Medical Council’s “Good Medical Practice” and Expert Evidence.
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
1. Evidence Act 1950
2. Malaysian Medical Council. Expert Witness, 2007