What Does an Expert in Clinical Forensic Medicine Do?

What Does an Expert in Clinical Forensic Medicine Do?

“Clinical forensic medicine is the application of clinical knowledge to the law. An expert can take a technical idea within his experience and make it accessible to all.” - Professor Edward Ogden PSM

I started Forensic Medical Consultants in 1994 as an impartial private service in clinical forensic medicine. I had been working full-time as a Forensic Physician with Victoria Police and realised that there was a need for expert opinions that were independent, impartial and reflected contemporary medical practice. I wanted to develop a service provided by a practising medical specialist rather than a laboratory-based expert or someone with specialist interest in autopsies. 

My early career was in general practice doing some part-time work in forensic medicine. My mentor was the late J. Peter Bush who had experience as a Police Surgeon in the UK before settling in Australia. He and I started the Australian and New Zealand Association of Police Medical Officers which later absorbed into the Australian College for Legal Medicine.

The challenge of presenting clinical findings in court suited me. Forensic medicine became a substantial part of my practice. Eventually, I moved into police headquarters and worked full-time in the field for almost a decade. The clinical forensic service was outsourced in 1995 to Monash University. I was invited to stay with the police as Principal Medical Adviser. I left the public service in 2012. My clinical work is now in the treatment of addictions.

In 1993 I was approached by Swinburne University of Technology to join their research team. We established the Centre for Drugs and Driving Research that has published papers on the effects of drugs on mood, attitudes and simulated driving. We have looked at alcohol, cannabis, amphetamine, methamphetamine, ketamine and various benzodiazepines as single drugs and in combinations. The Australian Research Council recently judged our work in the highest category for academic impact.

Can you briefly explain what Clinical Forensic Medicine is?

Clinical forensic medicine is the application of clinical knowledge to the law. An expert can take a clinical concept that is within his experience and explain it in plain language so that everyone can understand it. Clinical forensic medicine covers a range of medical topics including the examination of victims of crime, interpretation of injuries and the effects of drugs on human behaviour.

Many aspects of clinical medicine remain unaltered over time but there have been many technological changes that influence current practice.

Clinical Forensic Medicine differs from Forensic Pathology which is primarily concerned with understanding causes of death. Clinical Forensic Medicine is primarily concerned with the living: interpretation of injury including assault, sexual assault and child abuse. An important part of the discipline is understanding the impact of drugs and alcohol on human behaviour. We are sometimes asked about the fitness of a suspect for interview. A significant speciality is the provision of health care for people in the custody of police who have specific medical issues. There is some overlap with forensic pathology when considering drugs and medical conditions causing death.

My background in clinical practice combined with over 30 years working in various roles in law enforcement and research gives me unique expertise. I have delivered babies, given anaesthetics, worked in emergency medicine, administered a private hospital, been medical director of an ambulance service and taught at three universities. I currently have an active clinical practice in addiction medicine, teach medical students and junior medical officers and conduct research.

How has Clinical Forensic Medicine progressed since the beginning of your career?

Clinical Forensic Medicine is now a recognised speciality with specific training courses. The basics of interpretation of injury and understanding human behaviour have not changed. Many aspects of clinical medicine remain unaltered over time but there have been many technological changes that influence current practice.

Over the past fifty years methods have been developed to detect and measure increasingly tiny quantities of drugs in hair. This provides the ability to detect drug use over a period of weeks to months, depending on the length of hair available. It is relatively easy to collect and does not require special conditions to transport. Most drugs are stable in hair for months.

At the beginning of my career, breath alcohol concentrations were estimated with the old Breathalyzer 900 looking at changes in the colour of potassium dichromate solution. Since then we have seen the development of fuel cell technology and infrared absorption leading to the modern sophisticated instruments with accurate roadside detection. This has allowed both law enforcement and civil litigation to move from considering gross signs of intoxication to interpreting the likely effects of blood alcohol concentrations on risk.

The interpretation of drugs in oral fluid is a relatively new challenge. There are uncertainties about the technology, cross reaction between drugs like the amphetamines with medication and challenges in interpretation.

There is a misconception that these problems are confined to the young. In many forensic cases, older alcoholics and people who misuse prescription medication are overrepresented in insurance claims.

In most cases, the question I am asked is whether there is evidence that the person ‘under the influence of alcohol’ at the time of the incident.

Have there been any significant advancements in Clinical Forensic Medicine recently?

Blood alcohol concentrations dominated the early years of my practice in traffic medicine. Over the past 20 years, there has been increased recognition of the role of other drugs causing impairment. The focus in many jurisdictions is on illicit drugs because it is easier to proscribe driving with substances that are illegal anyway. It is now possible to measure hundreds of drugs that can affect safety not just on the road, but in the home and on holiday. This creates new opportunities and challenges in understanding what matters and what doesn’t.

There is a fascinating international debate about the role of cannabis and cannabinoids in traffic safety. The laboratory work consistently shows acute impairment of skilled performance related to safety critical activities but because the cannabinoids are insoluble in water, they disappear from the blood very quickly, so levels are hard to interpret. It is very difficult to relate a blood level with impairment. The epidemiological studies show little relationship between levels of cannabinoids and risk of collision or other accidental injury. Many commentators have reached a false conclusion that there is no safety risk.

 It takes an expert to determine whether a positive drug screen represents heroin use or consumption of grandma’s poppy seed cake.

As an expert witness, what are the most common cases that are you typically called upon to do?

The most common request for my expert opinion is to interpret the significance of a blood alcohol concentration in collision, travel insurance claims and personal injury. I have more than 30 years’ experience answering the usual questions: was alcohol a contributing or causal factor in the incident?   What was the blood alcohol concentration at the crucial time? What did the person consume to reach the measured blood alcohol concentration? Were they truthful in their account? In most cases, the question I am asked is whether there is evidence that the person ‘under the influence of alcohol’ at the time of the incident.

When other drugs are involved, expert opinion can be more difficult. Whilst impairment due to alcohol has been extensively studied, there is much less data for most other substances. The same questions are often relevant: Did the drug contribute to the event? Was the person under the influence of the drug? What did they take? This is particularly important in workplace drug testing where a ‘positive’ result might have an innocent explanation. For instance, could a positive result for morphine in urine be the result of consuming poppy seed bagels? We have had several cases of employees incorrectly facing discipline or dismal because their positive drug screen was due to poppy seeds in the diet. It takes an expert to determine whether a positive drug screen represents heroin use or consumption of grandma’s poppy seed cake.

I am staggered by the number of people whose lives are ruined by poor decisions involving alcohol and drugs. The consequences can be life-long with physical injuries such as quadriplegia or financial ruin. Some of our cases have had millions of dollars in pay-outs resting on interpretation of the facts. Travel insurance claims for treatment in the US for injuries sustained under the influence of drugs and alcohol can run to millions of dollars.

Providing expert opinions is humbling, because you know that in every case the opinion you provide will be scrutinised by others and may be tested in a tribunal of fact where the opposing side will have consulted experienced experts of their own.

Another focus of my work is the interpretation of injury. People in institutional care are often denied access to the protections of the criminal justice system, especially if they are non-verbal and unable to give an account of what happened. On the other hand, zealous overreaction to an unexplained injury can see a cloud of suspicion and even threats of unemployment unfairly placed on diligent staff members. I have taken pride in seeing justice done whether that means criminal charges when deliberate injuries have occurred or exoneration when signs have simply been misinterpreted.

A case in Singapore involved false report of serious assault that could have resulted in an innocent mother being jailed and the complainant incorrectly compensated for self-inflicted injury. My testimony challenged the official police version and resulted in an acquittal.

 How do you ensure that the expert opinion that you provide is objective?

The key to providing expert opinions is to have no investment in the outcome of any proceeding. I see my role as impartially looking at the available facts and providing the best interpretation based on my knowledge and experience. The greatest compliment I received as an expert came from a former Government Ombudsman who said that my reports were conservatively written, accurate and that when I said something, I meant it.

Providing expert opinions is humbling, because you know that in every case the opinion you provide will be scrutinised by others and may be tested in a tribunal of fact where the opposing side will have consulted experienced experts of their own. At the back of my mind is that every report has implications for someone: criminal charges may or may not be sustained; an insured may not get their payout; an insurance company may pay when they shouldn’t; an employee may face disciplinary action. There are no trivial reports and there are no trivial opinions.

What are some of the challenges that you’re faced with when determining if the influence of alcohol or drugs is significant?

The difficulty is determined by the circumstances of the inquiry – how challenging was the task at hand and what evidence is there that the level of alcohol or drug detected could have affected the outcome? The degree of impairment that might be the cause of a simple trip and fall is quite different from the impairment that might contribute to a high-speed collision. It takes a very different level of impairment to fall off a balcony or sleep through a fire alarm, than it does to fail to take a corner driving at speed.

The better the investigation, the easier it is to support or refute the story given.

There is often a delay between an incident and the obtaining of oral fluid, blood or breath for analysis. There is then the challenge of estimating the level of substance present at an earlier time and explaining in the opinion offered the weight that can be put on the interpretation.

One of the complicating factors is that many people have a vested interest in the outcome of the inquiry and are less than truthful. In most cases involving drugs and alcohol the consumption is denied, understated or underestimated. The challenge is separating facts that can be verified from unreliable memories and deliberate misstatements.

Can you talk us through the process of devising an effective report and service when called to case related to impairment by drugs or alcohol?

The effectiveness of any expert opinion offered is crucially dependent on the quality of the investigation undertaken by the client and the reliability of the factual material presented. In an ideal situation, there is a concise and coherent story about how the incident occurred and the events leading up to it. In insurance claims, there can be a significant gap between a claimant’s version of events and the material facts. The better the investigation, the easier it is to support or refute the story given.

The Expert Witness Code of Conduct requires the expert take all reasonable steps to ensure the relevant information is available to provide the opinion and declare in the expert report anything that was not available that might have aided the preparation of the opinion. This sometimes means that my team spends time with the client clarifying the available information to ensure the expert opinion is based on the best information.

Most of the population want to be safe at work, on the roads and when travelling and will make good decisions if they have the information.

 In your opinion, what could be done to reduce or prevent impaired driving?

It is easy to be despondent when we look at the figures of deaths and injuries due to drug or alcohol impairment on the roads, at work or when travelling. But we must not forget the great strides that have been made in community education, public awareness and law enforcement. Innovations include the development of random roadside drug and alcohol testing, interlock devices for convicted drunk drivers, zero tolerance for alcohol in professional and newly licensed drivers.

In my experience which spans almost two generations, there has been steady improvement. This is no reason to be complacent, but we should celebrate our successes. Most of the population want to be safe at work, on the roads and when travelling and will make good decisions if they have the information.

The only logical scientific response would be to have zero tolerance for alcohol in all drivers. There is a misconception in Australia that 0.05% is an acceptable blood alcohol concentration and in other communities 0.08% is accepted. My research shows that at 0.05% the risk of a collision causing injury to the driver is about 5 times greater than driving sober. When challenged, I ask “Who would let their airline pilot fly at 0.05%?” or “Would you let a surgeon operate on you at these levels?”

What are the key attributes that a good and objective expert witness needs to possess?

An expert must be able to demonstrate expertise and experience in their chosen field. It is important to have the confidence to present well in court so that the expert opinion can be tested. This means to be able to communicate effectively with judicial officers and laypersons on a jury. It is important to understand the principles of giving effective evidence and staying within the bounds of one’s expertise.

There must always be a willingness to work with experts from the opposing side of a dispute to reach a jointly considered position.

The ideal expert will have experience teaching concepts to students or lay audiences so that it comes naturally when asked to explain technical issues and industry jargon in a manner that a layperson can understand.

Being recognised as an expert is not to be taken lightly and maintaining the respect of the courts, legal practitioners and one’s peers. There is no property in expertise and the expert cannot ‘take sides’ in a dispute. This may mean writing a report that does not appear to further the cause of the person requesting it. Consistency of opinion and critical thinking are key to maintaining credibility.

There must always be a willingness to consider alternative interpretations of the facts. In court, there may be vigorous attack on the expert’s opinion that can be politely resisted without being dogmatic or failing to adequately consider alternative opinions. There must always be a willingness to work with experts from the opposing side of a dispute to reach a jointly considered position.

Professor Edward Ogden PSM

MA MBBS BMedSc GradCertMgt FRACGP FAChAM FFCFM(RCPA)

Mail               PO Box 2019, Templestowe Heights 3107

Tel                  (03) 9855 9699

Mobile           0419 366 693

 

 

Professor Edward Ogden PSM

MA MBBS BMedSc GradCertMgt FRACGP FAChAM(RCPA) FFCFM(RCPA)

Professor Edward Ogden PSM is a legally qualified medical practitioner registered by the Medical Board of Australia. He is one of the only practitioners in the country with Fellowships in Forensic Medicine, Addiction Medicine and General Practice. This experience gives unique insight and expertise in the human factors of forensic medicine.

He was employed by Victoria Police in various roles from 1978 to 2012, including 11 years full-time in the Department of Forensic Medicine and 17 years as Principal Medical Advisor. He was awarded the Public Service Medal (PSM) for services to forensic medicine on Australia Day 2005.

He is Secretary of the International Council on Alcohol Drugs and Traffic Safety and a member of the International Working Party on Prescribed Medication and Driving. He is a member of the Australian Medical and Professional Society on Alcohol and Drugs and the International Association of Forensic Toxicologists.

 

Forensic Medical Consultants

Forensic Medical Consultants is an impartial private service in clinical forensic medicine established in 1994. We provide expert opinions that are independent, impartial, timely and reflecting current medical wisdom. We are recognised nationally for the quality of our expert opinions and clearly written reports. The significant advantage we offer our clients is that our service is provided by a practising medical specialist rather than a laboratory-based toxicologist.

Forensic Medical Consultants has clients in all states of Australia including state and federal government agencies.  Our principal consultant, Prof. Edward Ogden PSM has written over 5,000 expert opinions and has given expert evidence to courts in all Australian States and the Republic of Singapore.

Forensic Medical Consultants understands that expert opinions are required in a timely manner. Our objective is to set out the issues in our area of expertise clearly in plain language to facilitate decision making. All reports are subject to stringent quality control and made in compliance with the Expert Witness Code of Conduct applicable to the specific jurisdiction.

We aspire to the pursuit of excellence in clinical forensic medicine by providing:

  • High standard of expert opinion.
  • Value for money.
  • Integrated with specialists.
  • Focused on current research.
  • A tradition of excellence.

Contact

Forensic Medical Consultants

PO Box 2019, Templestowe heights, Victoria 3107, Australia

Telephone: +61 3 9855 9699

Email: mail@forensicmedicalconsultants.com

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