The serious disincentive to undertake expert witness work created by the GMC decision on Meadow has been comprehensively demolished by the High Court extending witness immunity to encompass all disciplinary proceedings.

In terms of their general importance, Mr Justice Collins's findings in relation to the GMC pale in comparison to his decision to use the Meadow appeal as an opportunity to address, of his own volition, the clear and present danger of professional regulatory bodies doing side runs around witness immunity.

Collins J takes pains to set out the long history of the witness immunity rule, which goes back at least as far as R v Skinner (1772). It is clear that he wishes to leave no doubt as to why the rule exists and its fundamental importance in the proper administration of justice before he goes on to extend its reach to encompass all disciplinary proceedings.

But, despite what the GMC said in its press release on 17 February, the extended scope of witness immunity does not "place doctors, and other professionals, beyond the reach of their regulator, when writing reports for the courts or giving evidence." Expert witnesses owe an overriding duty to the court. It is, therefore, right and proper that it should be for the court to determine whether any particular expert witness has fallen short in performing his or her expert witness duties.

There is an important principle that underpins the witness immunity rule but which is often overlooked. Witness immunity exists to protect the public, not the witness. I don’t expect the GMC to understand this – why should they, it has nothing to do with being a doctor – but it is fundamental to the proper determination of whether any shortcoming in a witness is serious enough to warrant action against that witness. That is why it is proper for the court to make that judgment.

The immunity for expert witnesses is not a special favour to them. It is just part of the immunity that is extended to all witnesses. Any defendant who bemoans this protection for an expert witness with whose opinion they disagree ought to reflect on the fact that it also protects those experts whose opinions they favour. Allowing the ‘disciplinary bypass’ of immunity would inevitably lead to defendants who had access to virtually no expert input.

A clear and precise message

There must be a certain sense of dismay amongst campaigners who had set out to place constraints on the role of the expert witness. Helped along by the misguided antics at the GMC, they have achieved precisely the opposite effect. There is now in place a far broader protection of the expert witness. The message this judgment sends out is an emphatic one: expert witnesses must be able to give honest opinions in court, which on occasions may be unpopular or controversial, without fear of retribution.

Experts listed in the UK Register of Expert Witnesses can read in full the section of Mr Justice Collins's judgment dealing with witness immunity by clicking the link below.