Experts’ conflicts of interest

Recent reports note that the former vaccine task force chief, Ms Kate Bingham, who was also a venture capitalist, may have benefitted personally from an investment into a fund run by her private equity firm.  The private equity firm was SC Health Investors, and, in May of 2020, she stepped away from that role to take on the role of chair of the vaccine task force.  However, in July and August, SC Health announced a very substantial investment into one of its funds from a British organisation entirely funded by the UK government.  In short, the UK government had put money into a fund with which Ms Bingham was previously involved and with which she may be involved again in the future.  There is potential if not actual conflict of interest here.

Conflict of interest is an increasingly important issue in medical contracts and medico legal work, but it is often one which is not perhaps afforded the correct attention by some.

The issue of the vaccine task force and contracts during the pandemic are at a national level, but individual medical and nursing practitioners often have investments and work outside of their NHS or private practice which can present conflicts of interest but are not always readily apparent.  These issues tend to arise more in commercial settings, such as in the recent case of Essex County Council v UBB Waste (Essex) Ltd (3) [https://www.bailii.org/ew/cases/EWHC/TCC/2020/2387.html] in which the expert, Dr Wetherby, had connections with the defendant, UBB, which were not declared despite the fact that there was an obvious and serious conflict of interest.  In that case, the expert had not only not been independent but had actually been involved in the project that was under dispute.  Because of this, the court did not give weight to his evidence.

In other cases, medical practitioners have been found in conflict when they have been involved in separate private practices developing technology or services which are then provided either to the NHS or for private medical insurance companies.

Experienced experts in whatever field are usually aware of the need to review matters in more detail and consider possible conflicts but they are not always so readily apparent.  There are now within the NHS many private providers of services.  Some emergency departments and minor injury departments, for example, are run by groups of GPs who set up independent practices.  Some physiotherapy is outsourced to private companies with whom a practitioner may have some significant financial involvement which is not obvious at the outset of a case.

The matter is further complicated by the fact that often the case evolves and even if there is not conflict in relation to the initial defendant or trust, other organisations and groups may be brought into a claim, adding further potential areas where conflicts of interest can arise.

Lawyers are very sensitive to the issue of conflict.  As a firm, our injuries and medical claims department represents claimants only. There would be an obvious conflict of interest if we also worked for defendants.

Other professionals, however, may not have such a sense of conflict of interest and indeed it is likely that they do not.  For a large part of the time, unless there are significant business dealings, it is not an issue with which they need to address.  People are, of course, entitled to have their own private arrangements as they see fit, both professionally and financially.

The issue comes when a potential conflict is uncovered by an opponent during a case if it has not already been declared and made apparent to the court.  The court can then determine whether the conflict is material, whether there is a need for a change of expert or whether, in fact, the court is confident that the expert can still be completely independent in accordance with their obligations.

The pandemic and the provision of financial contacts in an emergency with fairly minimal review and scrutiny highlights the issues that arise out of conflicts.  Ultimately, what it means is that solicitors should investigate their potential experts a little more deeply and experts should be encouraged to be more forthcoming in relation to issues and business dealings with particular medical companies or services.

It is also important to note that experts can develop a conflict of interest during the course of a case.  In The Ritz Hotel Casino Ltd -v- Al Geabury [https://www.bailii.org/ew/cases/EWHC/QB/2015/2294.html] an expert tried to assist the defendant by treating him for a short time during the case. He did not treat the defendant at the beginning or the end but was found not to have disclosed a conflict of interest.

As individuals are sent for assessment and review by experts, solicitors need to be mindful of offers to treat and assist clients however well meaning. These are often with the best of intentions but threaten the future running of the case and evaluation of the evidence. Fr claimants the offer of help probably at a time when they are at their most vulnerable may seem a lifeline but it can cause serious problems with the legal case.

Ultimately, in a more complex financial world where there is considerably more private medical provision of services and goods, solicitors need to be wary of expert’s potential conflicts and need to investigate clearly whether there is a conflict, preferably before instruction.  From time to time during the course of a case – when additional expert work is to be done, for example, it is important to remind experts of their ongoing obligations  and to ensure claimants understand why this is necessary.

The awarding of contracts for PPE and other much needed equipment to companies where there may be an obvious and significant conflict of interest again  highlights the complexity of the issue and the need to be ever vigilant within a legal claim.