Dark law – Medical evidence
12 Jun 2009
By James Medhurst
Medical evidence is often required by Employment Tribunals, from short letters by GPs to explain why a person failed to turn up to a hearing, to detailed expert reports in order to establish whether a person qualifies for protection under the Disability Discrimination Act. There is case law which indicates that tribunals should not substitute their view for that of medical witnesses and most of us are used to such documents being accepted uncritically so it can initally be disconcerting when tribunals appear to take an entirely different approach and reject the medical evidence that has been placed in front of them.
To understand why, the important thing to realise is that the function of courts and tribunals is rather different from that of doctors. For general practitioners in particular, there is almost an assumption that they will provide a sick note if asked by one of their patients and they are rarely in a position to make a detailed assessment of the merits of the request. Having said that, they are sometimes sceptical and evidence of their scepticism is often visible in their choice of language. Tribunals are very astute to spot this and the most common reason why they may decide to reject a doctor’s note is because it states, for example, that, “Mr. Smith came to me this morning and told me that he was under a lot of stress.”
However, there are times where doctors would have no qualms at all about providing a diagnosis but tribunals still take a different view. This seems illegitimate but the problem is that, while they cannot substitute their opinions for medical expertise, there are occasions, even in the case of expert reports, where the results of the examination are not determinative and doctors have to fall back on the credibility of the patient in order to make their diagnosis. Of course, medics do not have a monopoly in the assessment of credibility and it could reasonably be said that tribunals are rather more qualified for this purpose. With the obvious exception of House, doctors generally do not give much weight to the possibility of a patient lying. In these cases, there is no reason for an expert’s opinion to be binding.
Nevertheless, I want to end this post with an observation. There seems to be a great deal of mutual suspicion between the legal and scientific communities, with the latter believing that the former are ignorant of their world. This can be intensified by a perception that courts and tribunals come to bizarre conclusions which fly in the face of scientific evidence and and that they disregard expert evidence for unsound reasons. It is hoped that the above analysis can help to explain why this happens in at least some cases and so help to bridge the divide between the two cultures. On the other hand, I would like to see tribunals rely much more explicitly on this particular piece of dark law and to treat medical experts with an appropriate level of respect in making their judgments, even where there are some good reasons to disagree with their conclusions. To do otherwise brings both professions into disrepute.
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