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Can a treating psychiatrist be an expert witness?

Is my treating psychiatrist allowed to attend my trial to help the court understand how I have been impacted by the crash and my crash injuries…or is she expected to be biased?

During a 2016 trial in Vernon, British Columbia, the Plaintiff’s treating psychiatrist was challenged on cross-examination by the ICBC defence lawyer for providing her expert opinion evidence about her patient.  The ICBC defence lawyer pointed to ethical guidelines published by the Canadian Academy of Psychiatry and the Law, which suggest that a treating psychiatrist should not appear as an expert witness for her patient because her treating role as an advocate for her patient would be in conflict with her duty tot he court to refrain from being an advocate.

Mr. Justice Skolrood, in his decision released June 7, 2016 (Jossy v. Johnson, 2016 BCSC 1023), explains why he “…would not endorse a rule limiting the ability of any treating physician, including a psychiatrist, to testify in a legal proceeding involving his or her patient, as to do so would deprive the court of the evidence of the physician with likely the best and most thorough understanding of the patient’s condition…“, and refers to corresponding limitations and bias concerns about “independent experts” as part of his explanation:

The Role of Expert Evidence

[103]     As can be seen by the above summary of the evidence, both parties rely extensively on expert opinion evidence, something that is common in cases of this nature.

[104]     In considering the opinions of the various doctors, it is useful to address a point raised in the cross-examination of Dr. Acton as it is relevant to the assessment of the expert evidence more generally.

[105]     Dr. Acton was questioned about certain ethical principles published by the Canadian Academy of Psychiarty and the Law (“CAPL”) which suggest that a treating psychiatrist should not appear as an expert witness in a legal proceeding involving his or her patient because a treating psychiatrist is an advocate for the patient and therefore potentially in a position of conflict.

[106]     Dr. Acton is not a member of CAPL and was not familiar with its guidelines. It was her view that a treating psychiatrist could provide objective evidence to assist the court but she also acknowledged the value of an independent assessment.

[107]     While I understand the concern underlying the CAPL guidelines, I would not endorse a rule limiting the ability of any treating physician, including a psychiatrist, to testify in a legal proceeding involving his or her patient, as to do so would deprive the court of the evidence of the physician with likely the best and most thorough understanding of the patient’s condition. That understanding is often developed on the basis of numerous appointments and interactions with the patient, occurring over many months or years, unlike “independent” medical experts who typically provide an opinion based on a single visit with the patient and a review of available records.

[108]     Further, the concern about a physician assuming an advocacy role applies with equal measure to those physicians retained and paid by the parties, or their counsel, to provide an opinion in a litigation context as it does to a treating physician.

[109]     In Meghji v. Lee, 2011 BCSC 1108 at para. 214, varied on other grounds 2014 BCCA 105, Mr. Justice Johnston provided the following useful observation about evaluating medical evidence given by such non-treating physicians:

Where causation of injuries is in issue, and the bulk of the medical proof of a plaintiff’s injuries is derived from experts retained and instructed by counsel, a trier of fact must spend more time evaluating the evidence in order to determine how much weight should be given to it. A physician who thoroughly examines a patient soon after an accident, and who regularly follows that patient with further examinations is in a better position to opine on causation than is a physician who examines months or even years after an accident. Evaluation of the expert opinion evidence is made more difficult in this case because each expert has been provided with masses of documentary material generated by the other experts, most of whom have been retained and instructed by counsel. A trier of fact must at least consider whether providing this much material is intended to influence each new expert’s opinion, and evaluate each expert’s opinion in order to determine whether the opinion is the product of the expert’s independent examination and thought, or has been swayed by the opinions of others or their sheer volume, and, if so, to what extent.

[110]     This is not limited to medical evidence in personal injury cases but applies in virtually all areas in which expert evidence is relied on. For example, accountants and actuaries often rely on economic assumptions to formulate their opinions on damages issues, and it is not uncommon for them to choose assumptions that are more favourable to the party who retained them.

[111]     The fact is that the court expects all expert witnesses to comply with the duties set out in Rule 11-2 of the Supreme Court Civil Rules to assist the court and to refrain from being an advocate for either party.

[112]     In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [Abbott], the Supreme Court addressed the role of expert witnesses and the duties attendant to that role. Mr. Justice Cromwell, speaking for the Court, said at para. 32:

Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her: P. Michell and R. Mandhane, “The Uncertain Duty of the Expert Witness” (2005), 42 Alta. L. Rev.635, at pp. 638-39. These concepts, of course, must be applied to the realities of adversary litigation. Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence, impartiality and freedom from bias.

[113]     The point of this is that the court should not automatically favour the opinion of a non-treating physician over a treating one, or vice versa. Rather, each opinion must be assessed to determine whether it meets the requirements of impartiality, independence and absence of bias. Assuming it does, it must then be considered alongside all of the other evidence, expert and non-expert alike, to arrive at the findings of fact necessary to determine the issues that arise.

[114]     In this case, while I may prefer the evidence of certain physicians on various points, I am satisfied that all provided their evidence in accordance with the requirements of the Rules and the principles set out by the Supreme Court in Abbott and similar cases.

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