Taking sides

IMAGINE you are a patient just diagnosed with a serious illness. You enter into an unfamiliar and frightening territory of complex tests and investigations, risk assessments and shared decision-making over a range of treatment options with varying statistical prognoses. This is often similar to how doctors or dentists feel when faced with clinical negligence claims or regulatory proceedings. A sense of helplessness and lack of control is almost inevitable.

The law can seem a dense and sometimes arcane realm to the uninitiated. Part of the great value of a medical or dental defence organisation is having ready access to an experienced legal team should you find yourself thrust into that realm. Over the past four articles in this series we have looked at the role of the medical and dental adviser, the in-house solicitor and the clinical expert. Here we speak with QC Christina Lambert on assessing evidence and speaking up for members at legal proceedings in the role of barrister.

The day I meet Christina she is in our Glasgow office to attend a conference on an upcoming GMC fitness to practise hearing involving one of our members. The potential consequences could hardly be more serious. An adverse ruling could lead to the doctor being struck off the Medical Register and barred from practising his chosen profession. Years of training and experience lost as a result.

“There is emotion in every case conference to a greater or lesser extent but this tends to be heightened in GMC cases because the stakes are so very much higher,” says Christina.

Long hours are spent going over the evidence in the case – the records, expert reports, potential witnesses. They discuss tactics for the upcoming hearing. “You are looking to deploy to the best effect the arguments that you have,” says Christina. All this background work is essential to help prepare for the day she must stand and argue the member’s case before a GMC panel.

A robust defence

In-house solicitors at MDDUS appoint or “instruct” an external barrister like Christina when it is clear that a case is to be litigated in an upper court or before a regulatory panel. Barristers specialise in courtroom advocacy on behalf of clients – presenting cases, examining and cross-examining witnesses, summing up all the relevant evidence and arguing reasons why the court should support their conclusions. But they also provide expertise in the run up to hearings, advising on relevant law and assessing the strength of a client’s legal case, based often on a considerable amount of research.

Christina has been a barrister for over 20 years and a Queens Counsel (QC) or “silk” since 2009. She is one of the UK’s top experts in clinical negligence, acting for both claimants and defendants, along with her professional regulatory work. About 80 per cent of barristers are selfemployed practitioners and belong to sets or chambers – groups of barristers who share accommodation and administration including clerks. Christina belongs to one of the most prestigious – One Crown Office Row chambers based at Temple in London.

Christina’s involvement in a case usually begins with a telephone call to her clerk from one of our solicitors. Her workload is always heavy with numerous clients at any one time and a range of cases at different stages – but if space can be found in her schedule she will take on a new case.

“The great excitement is when the box of papers arrives and you immediately open it to find out what the case is all about,” says Christina. All this material must then be read and digested in order to prepare for the case conference.

“If it’s a civil case there will be experts there and you’ll thrash things out and look for areas of strength and weakness in the evidence. Then you will give the solicitor and the member the best advice as to whether or not you think there is a robust defence.”

Such advice is invaluable to the legal team when considering whether it would be prudent to pursue a settlement or fight a case in court, and these decisions are always made in consultation with the member.

“If it’s a GMC case then it’s a rather more tactical discussion you’ll have. Not just focused on the evidence,” says Christina. “The point is that a GMC case is going to go ahead no matter what.”

Days in court

A good barrister will be able to digest and analyse a huge amount of information at relatively short notice, says Christina. Even more important the job requires an ability to get at the heart of the matter in every case.

“There’s no point having a barrister who can’t see the wood for the trees,” she says.

But the barrister’s skill is most on show when before a court or hearing. It calls for steady nerves and a high degree of intellectual flexibility.

“Evidence as it emerges in court can be very different from the evidence that exists on paper before you start, and therefore you need to be adaptable,” says Christina. “You need to think on your feet and expect the unexpected.”

Sometimes the evidence can be quite complex – especially in medico-legal cases. In one recent case involving spinal surgery Christina spent hours with a medical expert learning spinal anatomy and handling surgical instruments used in the procedure.

“You rely absolutely on your expert to take you right back to the anatomy and the physiology, to treat you as though you’re a medical undergraduate and to try and build up the layers of knowledge you need to have in order to be able to argue the case.”

Cross-examining “hostile” witnesses who may be leading experts in their field can at times be nerve-wracking, she admits. “No barrister who is worth their salt would say they are not apprehensive when a case starts. But you need that adrenalin in order to remain alert and adaptable to do your job properly.”

Born performers

When I ask Christina whether a good barrister is born or made, she replies: “I think a bit of both. There has to be a degree of enjoyment of performance – it goes without saying that you can’t be afraid of the sound of your own voice. But at the same time I think a good barrister is made.”

Christina herself did not start out in law. After studying history at Cambridge she worked for three years in a publishing company in Newcastle, indulging her passion in modern poetry. But the law had always been an interest and in particular the notion of being an advocate. So she pursued a one-year law conversion course at City University in London before being called to the Bar in 1988.

Later she decided to specialise in medical and dental legal work – her interest fostered by the fact that both her parents were GPs in Newcastle. But she never considered being a doctor herself. “I’m far too squeamish.”

Christina’s work as a barrister and QC is not limited to clinical negligence and medical and dental regulatory cases but also extends to coroner’s inquiries, professional negligence and aspects of employment law. Recently she was appointed counsel to Dame Janet Smith’s review of culture and practices at the BBC during the Jimmy Savile era.

The job offers Christina limited free time apart from at weekends when she leaves London and travels to her cottage near Alnwick in Northumberland. “I feel my blood pressure drop as I go further and further north,” she says.

But it’s a career path she rarely regrets, adding: “It’s a fascinating job. It is absolutely.”

Profile by Jim Killgore, editor of MDDUS Summons