Friday, February 23, 2018

Expert qualification doesn't depend on registration


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Last weekend's headlines screamed "Fuad: Autopsy doctors not qualified" a reference to statements attributed to the Minister of Health in the wake of what were said to be conflicting autopsy findings on the cause of death of soldier Curtis Marshall. The minister was quoted as saying that neither Prof Daisley nor Dr McDonald-Burris were qualified as forensic pathologists as far as the Medical Board was concerned. He claimed that only Dr Alexandrov was so registered.

The subsequent furore that arose from these statements by the minister was reminiscent of the fallout from the 1998 ruling by then Justice Volney in the Brad Boyce case on the expertise of Dr Hughvon Des Vignes, a ruling that was condemned by the Privy Council in 2006. Many persons were left wondering whether thousands of autopsies done in the last few years were somehow tainted and questionable. Although Dr Fuad Khan subsequently apologised to Dr Burris (but not to Prof Daisley) he reiterated that she needs to register with the Medical Board. There was a suggestion that she had the qualifications but was unregistered.

Registration of doctors and medical specialists is governed by the Medical Board act, as amended in 2007. That act provides for the ordinary registration of general practitioners as well as specialists. In respect of specialists Section 10A of the act provides:

"The Council shall cause to be kept a book or register to be known as the Medical Specialist Register which shall contain the following particulars: (a) name and address of the specialist; (b) area of expertise;(c) training, experience and qualifications in the area of specialisation;(d) date of registration in the Register; and (e) date of registration in the Medical Specialist Register".

From my experience which was confirmed by a check with the Medical Board "area of specialisation" refers to area of general specialisation and not subsets of the speciality. In other words a doctor who is a cardiologist will be registered as a specialist in internal medicine. Cardiology will be his further speciality or sub-speciality, as it is called. Similarly in the case of a heart surgeon or neurosurgeon his specialisation is registered simply as "surgeon". There is no requirement under the act for registration of sub-specialties. If a doctor who has a sub-specialty does send in these qualifications to the board the latter will accept the documents and keep them on the doctor's file but this cannot and does not mean he is registered in the sub-speciality by the Medical Board.

I was therefore taken aback by both statements of Minister Khan on the question of registration as a forensic pathologist. Surely this is a sub-speciality of pathology? As such the requirement under the act would be for all pathologists to register that area of specialisation (pathology) but not the subsets of clinical, anatomical or forensic pathologists.

It is not surprising that Dr Burris, or any other local pathologist, would not be registered as a "forensic" pathologist since this is not contemplated under the act. Several doctors who are forensic pathologists by qualification or experience will simply bear the title of pathologist for purposes of registration given our law. A foreign doctor who has been registered as a forensic pathologist in another country which registers such sub-specialities may lodge with our Medical Board that registration. In such a case he may claim he is registered in the sub-speciality.

Is Minister Khan aware of the ramifications of the Medical Board Act? It seems not since he still talks of "registration" as a forensic pathologist. Furthermore, he cites the Brad Boyce case is somehow supporting his statement that registration is required in this field before someone is qualified. The case does not support the position.

In that case the State had called two medical witnesses, one of whom was Dr Des Vignes, the pathologist who had conducted the autopsy. He had been employed by the Forensic Sciences Centre since the previous November (1995). He testified that the deceased had died of the complications of injuries to the brain which he had received. The defence called in Dr Daisley who opined that it was Johnson's treatment in hospital had caused his death.

Events then took what the Privy Council termed an unusual course. The judge in his own motion recalled Dr Des Vignes to ask him about his qualifications in forensic pathology. Dr Des Vignes was not registered as such with the Medical Board and his fellowship in Alberta was in the nature of an apprenticeship upon which he had been certified by the Chief Medical Examiner, under whose general supervision he had performed some 270 autopsies, as competent to act as a forensic pathologist and he had been so employed by the Forensic Sciences Centre. In the final analysis the judge decided that Dr Des Vignes was not qualified as an expert for the purpose of giving an opinion on the cause of death. He ruled his evidence inadmissible, withdrew it from the jury and directed the jury to acquit.

The Privy Council criticised the judge's actions and endorsed the view of the Court of Appeal that his exclusion of the evidence of Dr Des Vignes was erroneous in point of law. The judge, they said, had concentrated entirely on whether the doctor had a paper qualification and ignored the possibility that he might, by reason of his knowledge and experience, be able to assist the jury in determining the cause of death. The jury, having heard Dr Des Vignes testify, could take both his qualifications and experience into account in estimating the weight of his evidence.

It is clear, therefore, that a doctor may acquire expertise in the field of forensic pathology by both experience and training in the field. Registration with the Medical Board as a forensic pathologist is not a requirement of our law or a pre-condition to performing autopsies.

* Dana S Seetahal is a former Independent Senator