Search the website

10 - Medico-legal fees

July 2008

(England and Wales - category A, B and D fees)
Medico-legal work is perhaps the most complex area of fee-paid work. Doctors are generally approached to provide medical reports in connection with a legal action and/or attend court to give evidence, which may involve conferences with counsel or other related work.

It should be noted that medico-legal work counts as category 2 or fee-paid work for consultants.

The fees which may be paid will depend on the status of the witness, ie whether the doctor is an ordinary witness, a professional witness, or an expert witness. There is also a distinction between criminal and civil proceedings.

It is important for medical practitioners asked to undertake medico-legal work to be aware of these distinctions and their effect on the fees; it is not enough just to refer to the appendices in this guidance in isolation.

The nature of the work to be undertaken, the fees for that work (including cancellation fees), and any further commitments that may arise should be agreed in writing in advance of undertaking the work.

Leave entitlement as a witness (employed doctors)
Consultants and other employed doctors are granted special leave with pay to attend court as a witness. (General Whitley council terms and conditions - Advance letter: GC7/92 Amendment No 92)

askBMA can provide you with help if there is a problem in getting leave.

Status of witness
An ordinary witness is one who sees an incident take place, eg someone witnessing a robbery or road accident, ie acting as a member of the public.

A professional witness is someone who gives evidence from knowledge obtained in a professional capacity, and whose evidence is confined to matters of fact (eg a doctor giving evidence on treatment given to the subject of the proceedings).

An expert witness is someone specifically called in by one side or the other to interpret the facts using his/her clinical expertise (usually a consultant or other specialist).

Types of fees
An ordinary witness is entitled only to receive out-of-pocket expenses for court attendance and may be summoned to attend court. Doctors acting in this capacity do so as members of the public.

A professional witness can also be compelled to attend court, although there is an agreement with the legal profession that this should be avoided if possible.

If a professional witness is paid by the Crown the fees are limited by the Lord Chancellor’s Department (LCD) or Crown Prosecution Service (CPS) rates, which are set out in sections A - go there and B - go there of this schedule. For more information doctors should contact either the CPS or their instructing solicitor.

The expert witness fees are paid where a doctor is engaged to give expert evidence and opinion. In these cases, unless the doctor is appearing for the prosecution in a criminal case, a contract is made between the doctor and the solicitor in which levels of fees are agreed. No-one can be summoned to act as an expert witness or to give an expert opinion; but a doctor who has already agreed to act as an expert could then be summoned to give professional evidence. There are three elements to the work of an expert: the provision of one or more reports; the time spent qualifying as an expert in the particular case, and the court attendance itself.

Criminal cases
The Crown Prosecution Service, a government department, has specific responsibility for prosecution in criminal cases. Up to the point at which investigation ceases, the police authority is responsible for expenditure involved, including the cost of any medical expertise which may be sought. Fees for work undertaken on behalf of the police are set out in Fees guidance schedule 8: police work - go there.

Once the investigation is complete, the case is handed over to the CPS which is then responsible for subsequent spending. If the CPS commissions the service of a medical witness, either to write a report or to appear in court, it is directly responsible for payment and enters into a contract with the doctor in the same way as any other central government department. The fees which it pays professional witnesses and ordinary witnesses are fixed and are set out in the section on fees paid by the crown prosecution service - go there.

As a potential expert witness may choose whether or not to become involved in a particular case, there is a degree of flexibility in the amount which can be negotiated for payment. However, the CPS has issued guidance covering the rates it will pay in the majority of cases. Doctors seeking a higher rate will have to justify such amounts on the merits of the particular case, as fees are related to the expertise necessary in a particular case, not that which the individual is qualified to provide.

It is CPS policy to contact an expert witness in advance of the hearing in order to agree a fee. Unfortunately, this is not always possible, especially when hearings are listed at short notice. It is advisable, therefore, for doctors to contact the relevant CPS office in order to seek agreement on fees both for attendance at court and for any necessary preparation.

When called by the defence, a witness enters into a contract with the solicitor. However, the solicitor will seek to pay similar fees to the CPS because in the event of costs being awarded (either through legal aid or as a result of winning the case) the costs allowed will be limited to the amount which the LCD thinks is reasonable. The LCD rates are set out in the section on fees paid out of central funds (issued by the LCD) - go there.

Nonetheless, doctors may wish to take account of their own private rate when proposing fees to solicitors. However, the scope for use of such fees in criminal cases is limited; nearly all cases are legally aided and very few are brought as a result of a private prosecution.

Civil cases
In all civil cases the doctor's contract is with the solicitor and, as in criminal cases, a potential expert witness can choose whether or not to become involved and may stipulate terms relating to the fee. Where cases are awarded they are assessed by a taxing officer who may use as a guide the rates appropriate to criminal cases (go to fees paid out of central funds (issued by the LCD)), although past awards in civil cases will also be taken into account.

Except in legal aid cases, the general rule is that solicitors are personally responsible for the payment of fees for work requested by them: whether or not they receive payment from the client; whether or not the client wins the case; and whether or not the costs recovered from the other side cover the full cost of the case. Payment should ordinarily be made in the normal course of business, not at the conclusion of the case.

Many solicitors will seek to agree a contract containing the words 'subject to taxation' so that the doctor meets the difference in the agreed sum and the amount allowed. This is unsatisfactory in that it reduces the incentive for the solicitor to seek reimbursement at an appropriate level – though a solicitor may wish to use a good witness again and will want to seek a fair settlement.

The Law Society's 'Guide to professional conduct of solicitors' states that 'unless there is an agreement to the contrary, a solicitor is personally responsible for paying the proper costs of any professional agent or other person whom he instructs on behalf of his client, whether or not he receives payment by his client'. This principle applies to report fees and other qualifying work, as well as witness expenses.

Insolvency cases
Under section 366 of the Insolvency Act 1986, any individual who is able to give information about a bankrupt may be required to give evidence, for which no charge can be levied. The court may also require such individuals to produce any documents in his possession or under his control relating to the bankrupt.

Legal aid
Where a solicitor is acting for a client under the Legal Aid scheme, the solicitor will not ordinarily receive any costs until the case is completed. The solicitor will also normally have his bill 'taxed' by the court or assessed by the Legal Services Commission. This can result in the amount claimed for reports and witness court attendance being reduced. Hence a solicitor may ask a doctor to accept such fees as allowed on taxation or assessment.

In civil, and occasionally in criminal cases, the solicitor can seek prior approval before requesting a report or requesting the attendance of a witness. If the fees are authorised by the Legal Services Commission there should be no obstacle to the solicitor paying the costs of the professional's services. The Commission also has the power to make payment on account. Doctors are therefore encouraged to consider the factors they need to take into account in setting their fees for this work prior to entering discussions with solicitors for legally aided work. For further information, go to section 3 of the guidance note – Fees for part-time medical services.

Taxation of fees
Income tax must be paid on solicitors' fees in the year of invoicing even if solicitors do not pay on time or at all. Some practice managers now issue a standard letter informing the solicitor of the fee and promising a reply, by return, on receipt of the payment. The BMA does not have a policy on this practice and recognises that it is up to individual practitioners to make their own arrangements for billing and recovering outstanding debts.

Disputes
Where a dispute arises over payment of fees, each solicitor should have a complaints procedure for resolving such problems. Unfortunately we understand that the Office for the Supervision of Solicitors no longer deals with such cases. Hence doctors may have to resort to the small claims court to ensure the payment of their fees.

Model agreement
Fees should be agreed with solicitors before any work is undertaken and the following model letter may be adapted as appropriate.

Model letter to solicitors

Smith & Co Solicitors
Anytown
Anyshire
AB1 2CD

Dear Sir/Madam

Medico-legal fees: terms and conditions

I write further to your recent request to prepare a detailed medical report on behalf of your client, Ms A Jones. I set out below my terms and conditions for medico-legal work.
Reports and qualifying work and conferences with counsel will be based on an hourly rate of £.....................

Attendance at court as a professional/expert witness will be on the basis of £................. per half day or £.................., per full day.

Travelling time will be charged at an hourly rate of £................. in addition to travel and subsistence costs.

If a court appearance is cancelled or rescheduled at less than (for example 72) hours notice, I will levy a cancellation charge of (for example 50%) of attendance fee.
Please note that these fees will not be subject to assessment or taxation by the court and that all accounts are to be settled within (for example 28 days).

I would be grateful if you could confirm your acceptance of these terms in writing.

Yours faithfully



Dr John Brown


Notes

• This fees schedule should be read in conjunction with the BMA guidance Fees for part-time medical services.
• The effective date is given above each set of fees.
• Members may obtain additional advice or clarification from askBMA.
• This guidance was prepared by the professional fees committee and produced by the publications unit.