When Should an Aesthetic Expert Witness Refuse Instruction?

I think many people assume expert witnesses are instructed because they already hold an opinion someone wants confirmed. This is exactly what should not happen.

An expert witness is not supposed to function as an advocate for either side, and should begin from a position of uncertainty. We should analyse the evidence independently, apply professional expertise objectively, and assist the court on matters that fall within that expertise - not defend the claimant or the practitioner. This sounds straightforward in principle, but I am not sure people always appreciate how difficult it can become in practice, particularly in aesthetic medicine.

This is an industry where dissatisfaction, emotion, reputation, commercial pressure and personal identity and image can become heavily intertwined. The patients are often distressed and practitioners may feel professionally exposed. By the time an expert is instructed, there is usually already a very strong narrative in place about what somebody believes happened.

Occasionally an expert is presented with instructions that rely on assumptions which are unsupported by the records or clinically unrealistic. I think this issue is particularly relevant in aesthetic medicine because the industry itself is still relatively poorly regulated compared with other areas of healthcare - sometimes important records are absent, documentation is inconsistent, consultation may take place partly through messaging or online forms and partly in person. In many cases, there is little continuity of care. Standards vary enormously in this industry, and medico-legal experts in aesthetics are often reviewing fragmented clinical histories, not clear medical records.

Some instructions can feel like the expert is being directed towards a conclusion rather than asked to assess the evidence. That does not always mean the instruction must be refused, but we must ask ourselves at what point does accepting it begin to compromise independence.

Another issue is when there is explicit or implied pressure to “fill in the gaps” where documentation is lacking. For example, a practitioner may insist certain discussions took place despite limited records. Or a claimant may present assumptions about what should have happened without appreciating how much uncertainty exists retrospectively. I think this is one of the greatest risks for experts - we have to be careful not to replace evidence with speculation, so the opinion itself won’t become vulnerable.

This is, in my view, one of the clearest warning signs: when an expert starts feeling pressure to advocate instead of analyse. An independent expert has to be prepared to disappoint the instructing party if the evidence requires it.

There are situations where instruction refusal is appropriate because the case falls outside the expert’s genuine area of competence. Aesthetic medicine has expanded so much over the last decade and now covers a very broad range of treatments, different devices, techniques and prescribing practices. Experience in one area does not automatically make somebody an authority across the entire field. Acknowledging limitation is not weakness but part of objectivity.

Conflicts of interest also deserve attention. The industry can be surprisingly small and practitioners train together, speak at conferences together, appear on professional panels together, and occasionally know each other personally. Those relationships do not automatically prevent independence, but they require careful consideration.

As medico-legal work within aesthetic medicine continues to expand, I think the quality of expert evidence will matter increasingly. Courts rely heavily on independent experts to understand complex clinical disputes in an industry where standards, regulation and training are not always consistent.

Sometimes the most responsible decision an expert can make is to:

• Decline to act because the records are too incomplete.

• Refuse to support assumptions that are not evidence-based.

• Recognise that the instructions compromise independence.

• Accept that a case falls outside your expertise.

Not every instruction should become a report. That may not always satisfy the party seeking instruction. But expert evidence only has value if it remains genuinely independent.